Opinion
Page __
__ Cal.App.2d __ 254 P.2d 618 PEOPLE v. BECHTEL. Cr. 4784. California Court of Appeals, Second District, Second Division Feb. 18, 1953Rehearing Denied March 2, 1953.
Hearing Granted March 19, 1953.
[254 P.2d 619] Frederic H. Vercoe, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., Frank Richards, Ass't Atty. Gen., S. Ernest Roll, Dist. Atty., and Ralph F. Bagley, Deputy Dist. Atty., Los Angeles, for respondent.
MOORE, Presiding Justice.
By indictment filed February 14, 1951, appellant was accused of conspiracy (count I) to violate section 67 1/2, Penal Code (offering a bribe), and by counts II through VI of grand theft. Upon pleas of not guilty, of having been once in jeopardy and of prior acquittal, trial was had and verdicts of guilty were returned as to counts II, III, IV and V and not guilty as to counts I and VI. Defendant now demands a reversal of the judgment, the orders denying motions for a new trial and in arrest of judgment on the grounds of insufficiency of evidence to support the verdicts and error in sustaining the objection to appellant's offer of proof of former jeopardy and prior acquittal.
The crimes charged against appellant arose out of his agreement to accept the sum of $400 per week 'protection money' from one Dr. Bluechel during the period between August 1949 and July 1950. The doctor was the principal witness for the people. He testified that when appellant visited his medical office in May 1949, he stated that if the witness wished to perform illegal abortions, appellant could arrange protection for him against law enforcement agencies. Dr. Bluechel accepted the proposed program and agreed to cooperate. After subsequent negotiations, Bechtel informed him that arrangements were completed and that the doctor could proceed with his illegal activity. Appellant also made plans for the doctor to receive referral patients from a Dr. Crum's office; for the latter's nurse, Tony Ford, to take the calls and make the appointments. Appellant was to receive $400 per week and arrange for protection with the 'powers that be.'
After such arrangements had been assertedly consummated, Dr. Bluechel performed illegal abortions on women referred by Miss Ford as well as for his own patients. He testified that he paid appellant the agreed sum of $400 weekly in cash; that on appellant's visits to procure the money Bechtel told the doctor that everything was 'under control'; that Mr. Woodruff of the Medical Board was being 'taken care of' as well as the 'powers that be in the City Hall.' Dr. Bluechel testified that he relied upon such representations and pursuant thereto made the protection payments. He testified to specific $400 payments on August 20, August 27, September 3 and September 10, 1949, the identical dates upon which the charges of grand theft are alleged in counts II, III, IV and V respectively.
On July 7, 1950, the witness was apprehended by law enforcement officers in the act of performing an illegal abortion. He confessed to having performed illegal operations after his agreement with appellant, and agreed to cooperate with the Medical Board and the Los Angeles Police Department in trapping appellant. Thereupon the doctor arranged for a meeting in his office, the police officers to be concealed and listening in an adjacent room, and a recording device to make a transcription of the conferences. Appellant came, conferred, and accepted from the witness a [254 P.2d 620] roll of $400 in currency, the serial numbers of which had been previously recorded by the officers. Defendant was apprehended upon leaving the office and the bills removed from his person. On being asked where he got the money, he replied, 'I had it when I came in here.'
Various and numerous law enforcement officers of the highest rank from the Los Angeles Police Department, Los Angeles County Sheriff's office, State Medical Board and the Long Beach Police Department testified that they had never had dealings with appellant; had never met him in either official or individual capacity. They were the principal officers in charge of illegal abortion investigation in the Los Angeles area.
Other witnesses established that appellant held himself out as a 'fixer'; that he had stated that he could arrange protection for abortionists; that in one instance when a Dr. Kirk was arrested on suspicion of performing illegal abortions, appellant offered to 'fix the case' for a sum of money.
This brief recitation of the highlights in the evidence supports the theory of the prosecution that appellant falsely represented to Dr. Bluechel that appellant had important connections and for a $400 weekly payment could protect the doctor from law enforcement officials, whereas in truth, appellant had no intention of so using the money, but intended to and actually did convert the sums received from Dr. Bluechel to his own use. Appellant's argument that the money represented payment to him for arranging for referral of Dr. Crum's abortion patients is contrary to the direct testimony of Dr. Bluechel to the effect that he paid the sums for protection and would not have done so but for appellant's representations. While the proof is clear that appellant stated to the doctor that protection would be furnished to make him secure against prosecution, yet assuming that appellant's promises were not the sole inducting cause of the doctor's payment of the money each week, it cannot be gainsaid that it was a material cause and hence sufficient. People v. Chamberlain, 96 Cal.App.2d 178, 182, 214 P.2d 600. Under the evidence, the jury were warranted in determining that appellant received possession of the funds for the specific purpose of applying it toward protection payoffs but at the time harbored a secret intention to convert it to his own use. By virtue of such finding he was guilty of larceny by trick and device. People v. Barnett, 31 Cal.App.2d 173, 175, 88 P.2d 172. On the other hand, if the jury determined that the doctor parted with both possession of and title to the funds, but was induced to do so by defendant's false representations, it properly found the accused guilty of larceny on the theory of obtaining money by false pretenses. (Ibid.) The intention with which an act is done is a question for the trier of fact. It was thus for the jury herein to resolve the questions of both the owner's intent and that of appellant at the time of the payment and receipt of the funds. People v. Hewlett, 108 Cal.App.2d 358, 368, 239 P.2d 150. Accordingly, since the jury on the basis of substantial evidence determined the falsity of appellant's representations and adopted the doctor's testimony as truth, this court, under familiar rules of appellate procedure is foreclosed from interfering with their implied finding.
No Error in Rulings on Evidence.
It is contended that the trial court erred in refusing to permit appellant to prove, in support of his special plea of former jeopardy, that he had been previously in jeopardy and acquitted at a former trial of the offenses included within the indictment of which he now stands convicted. Appellant in fact had been acquitted on four counts of grand theft, crimes arising out of the same protection payoff arrangement with Dr. Bluechel. At that time, the trial proceeded upon an indictment which charged four separate thefts of $400 sums on or about June 10, June 17, June 24 and July 11, 1950. Appellant's plea of former jeopardy and his insistence arise from confused thinking. Because he was accused by the prior indictment of thefts on the three specified days in June, 1950, after he had allegedly agreed with Dr.
[254 P.2d 621] Bluechel to guarantee protection against law-enforcing agencies, appellant now advances the theory that because the thefts in August, 1949, were subsequent to the alleged corrupt agreement they all arose out of or followed the same conspiracy and therefore his trial on the first indictment constituted former jeopardy. He accentuates his contention by the narrative that on his first trial the jury were instructed that verdicts of guilty might be returned even though the proof did 'not show the precise time on which the offenses were committed' so long as the jurors were satisfied that the 'offenses were in fact committed at any time before the filing of the indictment.' A conspiracy to commit a series of felonies does not amalgamate all of them into one offense. Each time a bandit goes upon the highway and offends his sovereign he is guilty of the crime classified by his act. Because the rules of pleading have been so simplified as to permit all the offenses of the accused to be alleged in one indictment, he is not acquitted of those omitted from the pleading. Moreover, the dates of the crimes charged in the indictment now under review were about ten months subsequent to those for which he was acquitted. It is unreasonable to assume that on a trial for grand thefts alleged to have been committed in June 1950, a jury could have found they occurred in August, 1949. Also, the evidence received at the second trial proved a series of crimes entirely different from those charged in the former indictment and to establish which proof was introduced at the first trial. Each taking of $400 from Dr. Bluechel constituted a distinct offense from all others, notwithstanding fraudulent statements were uttered and the evil intent was formed before any theft was committed. People v. Rabe, 202 Cal. 409, 414, 261 P. 303; People v. Serna, 43 Cal.App.2d 106, 108, 110 P.2d 492; People v. Caldwell, 55 Cal.App.2d 238, 251, 130 P.2d 495. Where one has been acquitted of a crime charged to have been committed on or about a designated date, a subsequent indictment for an offense of the same nature alleged to have occurred on other dates, does not constitute double jeopardy. People v. Lachuk, 5 Cal.App.2d 729, 731, 43 P.2d 579; People v. Warren, 16 Cal.2d 103, 112, 104 P.2d 1024. In People v. Wilson, 79 Cal.App. 709, 250 P. 879, the defendant was acquitted of three separate counts of rape and incest, alleged to have occurred 'on or about' specified dates. Thereafter the defendant was accused in a new information with similar offenses on a date within five weeks of one of the acts charged in the first indictment. Defendant's plea of double jeopardy was rejected with the observation that 'The act of June 2, 1925, was a distinct and separate crime from the acts of January and July which were involved in the former trial and acquittal. * * * Though evidence of the act of June 2 may have been offered in the former trial for the purpose of showing the general conduct of the appellant, he could not have been convicted of that act in that trial because the issue was clearly drawn to the three acts specified in the indictment. * * *'
The authorities from sister states cited by appellant are of no benefit to him. In State v. Dye, 81 Wash. 388, 142 P. 873, the first information charged defendant with rape alleged to have been committed within three years of the filing of the accusation. After acquittal, defendant was again charged with rape on a specific date within the same three-year period. Because of the method of pleading, the former acquittal was held to be an acquittal of the same charge in the later information. In State v. Wolpers, 121 Wash. 193, 208 P. 1904, the first information charged defendant with rape on or about May 8. The second information, filed subsequent to his acquittal of the former charge, declared a rape of the same person on or about May 1. Because of the close proximity of the dates it was held that the acquittal of the first charge served to bar any prosecution under the second information since the word 'about' covered both dates.
Since the order denying the motion in arrest of judgment is nonappealable and was through inadvertence included in the notice of appeal, it is dismissed. People v. Pierce, 110 Cal.App.2d 598, 611, 243 P.2d 585.
[254 P.2d 622] The judgment and the order denying the motion for new trial are affirmed.
McCOMB and FOX, JJ., concur.
On Petition for Rehearing.
PER CURIAM.
The petition for a rehearing is denied. The only basis in fact for the petition is that one of the five overt acts alleged in count one of the action at bar was alleged also in the previous indictment as one of four overt acts under count one. In the case at bar counts two to six involve only acts of grand theft on dates distinct from those referred to in the corresponding counts of the prior indictment. Hence, no prejudice was suffered.