Hearing Granted by Supreme Court May 5, 1927.
Appeal from Superior Court, Los Angeles County; Arthur Keetch, Judge.
Paul B. Rabe was convicted of obtaining money and property by false pretenses, and he appeals. Affirmed. COUNSEL
Gretchen Wellman and Frank G. Howe, both of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and H. H. Linney, Deputy Atty. Gen., for the People.
The appellant was charged with the offense of obtaining money and property by false pretenses. The indictment was in four counts, upon all of which the jury returned a verdict of guilty. Judgment was pronounced upon the verdict, the sentence was suspended upon the third and fourth counts, and after denial of appellant’s motion for a new trial he instituted this appeal from the judgment and order denying his motion.
The first count charged the obtaining on August 1, 1924, of 200 shares of capital stock of the Moreland Truck Company and 20 shares of the capital stock of the First Federal Securities Company, taken together, of the total value of $4,000, from Elmer E. Owen. The second and third counts charged the obtaining on August 2 and 5, 1924, from Henrietta McGaw, of $1,250 and $4,000, respectively, and the fourth count, of obtaining on August 15, 1924, from the same person, a deed to real property of the value of $11,000. In each instance the money or property was advanced in payment of subscriptions for what was termed preorganization stock of a proposed corporation to be known and styled the Long Beach Dock & Terminal Company, which company was not incorporated upon any of the dates of the subscriptions or subsequently.
The misrepresentations were the same in each instance and were as follows: (1) That defendant was taking preorganization subscriptions for the purchase of capital stock of the Long Beach Dock & Terminal Company; (2) that the company had bought and practically paid for 140 acres of harbor land, upon which to erect docks and warehouses; (3) that a bond issue of $6,000,000 had been "arranged for" to cover the cost of construction; (4) that Gen. George W. Goethals had been secured to act as chairman of the board of directors and as supervisor of construction; (5) that the promoters had secured the consent of Senator Shortridge, Congressman Lineberger, and C. H. Windham, city manager of Long Beach, to act as officers and directors of the company; (6) that the subscriptions were worth the amount charged therefor.
At the opening of the trial defendant objected to the introduction of evidence on the ground that the facts stated did not constitute a public offense; that matters were stated which constituted a justification; and that there was not a compliance with sections 950, 951, and 952 of the Penal Code. He now urges the same objections as insufficiencies of the indictment. His position may be stated as follows: That the indictment shows that the defendant was in fact taking preorganization subscriptions; that there is no allegation that the subscriptions were not of the value charged therefor; and that as to all other representations they relate to future acts, i. e., the organization in the future of a company to take over the land and to be officered by the individuals named. This thought runs all the way through appellant’s brief and is the foundation upon which rests most of his argument. Such is not the effect of the allegations. They are very similar to the facts in the case of People v. Ballard (Cal.App.) 241 P. 596. From a bare recital of the allegations one would judge that all that remained to constitute the Long Beach Dock & Terminal Company a corporate entity was to comply with legal formalities; that to all intents and purposes the personnel of its directors had been determined; that its promoters were sufficiently financed to have purchased for it most valuable real property holdings and had arranged very extensive financing. All of these things were representations of past acts and present conditions and not outbursts of the prophet looking with optimistic eye into the distant future. They are all alleged to be false, and we can hardly imagine what might be added to bring it more squarely within the condemnation of the statute. The allegation of falsity not only covers the representation that it was preorganization stock, but also that it was worth the price charged.
Outside of these objections, however, we do not find a serious question concerning the fourth count of the indictment. While appellant pays scant attention to the third and fourth counts by reason of the fact that sentence was suspended, there is sufficient in his brief that we have concluded that we must examine and pass upon them. As has been stated, the indictment shows the obtaining of a deed to real property of the value of $11,000. Counsel says that this count is fatally defective on the authority of People v. Folcey (Cal.App.) 247 P. 916, wherein it is held that no penalty is provided for obtaining real property by false pretenses. While a petition for a hearing of this case in the Supreme Court was denied, we feel that under the authority of People v. Davis, 147 Cal. 346, 81 P. 718, and Bohn v. Bohn, 164 Cal. 532, 129 P. 981, we are not bound to accept the language as precedent, but should give expression to the reasons for our dissent therefrom. The entire history of larceny, it is true, refers to the felonious taking and carrying away of personal property, so that there is no such thing as the larceny of real property. When on account of defects in the common law relative to cheats and expanding commerce it was found necessary to extend the law by statute, the similarity of the offense to larceny operated to confine the statute to personal property, in which condition section 532 of the Penal Code was found when the case of People v. Cummings, 114 Cal. 437, 46 P. 284, came before the Supreme Court. To remedy the deficiency thus existing in the law, and pointed out in this case, the Legislature amended section 532 to read as follows, the amendment being here set forth in italics:
"Every person who knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor, or property, whether real or personal, or who causes or procures others to report falsely of his wealth or mercantile character, and by thus imposing upon any person obtains credit, and thereby fraudulently gets possession of money or property, or obtains the labor or service of another, is punishable in the same manner and to the same extent as for larceny of the money or property so obtained." (Italics ours.)
It will be noted, of course, that the concluding language was not changed, so that if there be a penalty for obtaining real property by false pretenses we must insert the words "like value" or some similar expression, after the word property, where it last occurs in the section, in which event the final portion would read as follows: "Is punishable in the same manner and to the same extent as for larceny of the money or property of like value so obtained." If this construction be not adopted the amendment is fruitless and the words "whether real or personal" mean nothing. It is not our understanding of the rules of construction that such should be the case, but that rather effect should be given to each word and phrase if fairly and reasonably possible. Many cases might be cited to support this rule. It has been said (Maguire v. Cunningham, 64 Cal.App. 536, 543, 222 P. 838) that the distinction between real and personal property, so far at least as actions to quiet title are concerned, is purely artificial. This particular artificiality was removed by amendment of section 738 of the Code of Civil Procedure in 1921, and in this age of industrial development, where it is almost as easy to defraud one of real property as of personal property, we think the plain intent of the Legislature to remove the artificiality under discussion should govern and that we should hold the fourth count of the indictment to be sufficient.
The next assertion of appellant is that the evidence is insufficient to support the verdict. We have carefully examined the voluminous transcript and fail to see how the jury could have arrived at any other verdict. Concededly Senator Shortridge, Congressman Lineberger, and Mr. Windham had never consented to become officers and had never consented to the use of their names. The representations were freely made that "they," which "they" must mean the organizers or promoters of the proposed company, had purchased from the Union Pacific and practically paid for 140 acres of harbor land-and it was positively established that they had not purchased from the Union Pacific 140 acres or any other land. If the defendant or any one associated with him had purchased 140 acres of land from any other source not covered by his representation, it was his duty to present such evidence after proof of the falsity of the representation. Shemwell v. People, 62 Colo. 146, 161 P. 157. Instead, on the stand he denied having made the representation. Nor can the defendant avail himself of the claim that the proof shows a false representation that the purchase of 140 acres was made of the Union Pacific and that this proof is at variance with the allegation that they had purchased 140 acres, on this appeal, for the reason that if such amounts to a material variance, and we do not so believe, it was not presented to the trial court. People v. Fraser (Cal.App.) 253 P. 340; People v. Gonzales, 69 Cal.App. 609, 231 P. 1014; People v. Fuski, 49 Cal.App. 4, 192 P. 552. It is sufficient if one material misrepresentation be proved. People v. Fraser, supra; People v. Griesheimer, 176 Cal. 44, 167 P. 521. In this case several misrepresentations were conclusively established.
Nor can it be seriously argued that the subscribers received what they paid for. As has been indicated, every representation of fact, every suggestion, the entire scheme, was based upon the immediate organization of the corporation, which was never done. The subscribers got nothing except a subscription agreement which likewise was so artfully drawn as to leave out a time limit for incorporation, apparently because the actual incorporation was represented to be almost a closed incident. Lured on by the imposing distribution of a supposedly large capital, the subscribers parted with their money and property and received what they paid for only on the theory that they were subscribing for the "hole in the doughnut."
Attack is next launched upon the testimony specially directed toward count one, and it is claimed to be insufficient to show the obtaining from Mrs. McGaw of $1,250 in cash. The testimony shows that she had invested $1,500 with Harry C. Weist Company, with whom the defendant was at the time of investment associated. She executed an assignment of her claim for the return of the money to the defendant. Then when the check was made out to her-Mr. Farrell, an associate of the defendant, brought the check to her-she indorsed it; delivered it to Mr. Farrell, who in turn says he delivered it to the defendant. On August 18 the defendant wrote to Mrs. McGaw, saying that he had received confirmation of her subscription of August 1, which is the subscription in question. Under these circumstances we think the jury were fully justified in believing that the defendant had cashed the check. In the case of People v. Whalen, 154 Cal. 472, 98 P. 194, which was a case of obtaining money by false pretenses, it appeared that Mrs. Martin was induced to buy 100 shares of stock at the price of $1,000 and gave the defendant a check for $1,200 in payment for the 100 shares, plus 20 shares purchased by her sister. "The check was given on May 3, 1905. The defendant remained in Sacramento, where this transaction occurred, for several weeks thereafter, and, while there, hired men to go with him to the mines, which were in the state of Nevada, and for more than six months thereafter he was in charge of the affairs of the mining company, either at the mines or at Sacramento." The court says:
"There was nothing disclosed by the evidence to indicate that the defendant experienced any difficulty or delay in obtaining payment of the check. The facts concerning the payment of the money were all elicited upon the examination in chief of the two witnesses. There was no cross-examination on that subject, nor any attempt, at any stage of the case, to show that the check had not been paid in the usual course of business. Under the circumstances, the jury were justified in construing the testimony of the prosecuting witness and her sister to mean that the money called for by the check had actually been paid."
While we think that this case is decisive of the question here, we call attention to another case where the charge was obtaining money by false pretenses and the check was drawn bearing a general indorsement the same as in the instant case, and the court says:
"Before passing this phase of the case it might be well to call attention to the fact that the check bears a general indorsement, and there is nothing in the record inconsistent with the fact that it was paid in due course. The least that can be said, under the circumstances, is that the prosecution made out a prima facie case, and assuming, without deciding, that the defendant might properly make out a defense by showing that the maker was ultimately relieved from payment, the burden to do so, after the prima facie showing on the part of the prosecution, was cast upon him, and, not having done this, he cannot now complain." People v. Steffner, 67 Cal.App. 1, 11, 227 P. 690, 695.
No claim was made by the appellant here that he did not receive the money upon the check and for the reasons stated he cannot be heard to complain. Also, in the case of People v. Hutchings, 56 Cal.App. 397, 205 P. 480, it was held that proof of receipt of check sufficiently supports the charge of obtaining money in the absence of evidence that the check was not cashed.
Counsel argues that there is no causal connection between the false pretenses and the obtaining by defendant of the money and property of complaining witnesses. What has been said heretofore with respect to the immediate organization of the proposed corporation is applicable at this juncture. Furthermore, we think that the case of People v. White, 7 Cal.App. 99, 93 P. 683, is not at all in point for the reason that there is a connection alleged and proved in this case. There was a natural connection between the pretenses and the parting with their money and property by the complaining witnesses. Industrial corporations of the character contemplated in the scheme of the defendant owe their success or failure in many instances to the character, integrity and genius of the men composing the organization and to their ability to finance the organization with large sums of money, such as was proposed here. There can be no doubt that the representations here made were the inducing cause of the investment the complaining witnesses supposed they were making.
The last argument advanced by appellant, that the subscription agreement, having recited that the moneys were paid to the defendant as trustee, that there is a fatal variance between the proof and the allegation that the defendant obtained the money and property is fully answered by the cases of People v. Bryant, 119 Cal. 597, 51 P. 960, and People v. Griesheimer, supra, in which last case this language is used:
"The crime charged against this defendant was complete upon his obtaining the money from Muck by false and fraudulent representations, and it was not necessary to show what defendant did with it."
Also, in the case of State v. Balliet, 63 Kan. 707, 66 P. 1005, quoting from an Indiana case:
"‘The law does not make it an element of the offense of obtaining money or property under false pretenses that it shall be obtained for the person making the pretenses himself, or that it shall be intended to obtain it for another, for it is provided that "whoever shall obtain money or property" by false pretenses shall be guilty of a felony."’
Judgment and order appealed from are affirmed.
We concur: WORKS, P. J.; CRAIG, J.