People v. Gilliam

• Citation: 297 P.2d 468,141 Cal.App.2d 749
• Decision Date: 23 May 1956
• Docket Number: Cr. 5543
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Howard N. GILLIAM, Defendant and Appellant.

Page 468

297 P.2d 468

141 Cal.App.2d 749

The PEOPLE of the State of California, Plaintiff and Respondent, v. Howard N. GILLIAM, Defendant and Appellant.

Cr. 5543.

District Court of Appeal, Second District, Division 2, California.

May 23, 1956.

Harrison M. Dunham, Los Angeles, Harold J. Ackerman, Los Angeles, of counsel, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Emmet Seawell, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Convicted of six counts of grand theft, Pen.Code, § 484; § 487, subd. 1, defendant appeals from the judgment and relies upon the sole claim of insufficiency of the evidence to support the verdict.

The victims of defendant's false pretenses were incredibly credulous and greedy but that does not absolve defendant from guilt. On the civil side of the law of fraud it is said: 'If the conduct of the plaintiff in the light of his own intelligence and information was manifestly unreasonable, however, he will be denied a recovery. * * * 'He may not put faith in representations which are preposterous, or which are shown by facts within his observation to be so patently and obviously false that he must have closed his eyes to avoid discovery of the truth * * *.' Prosser Torts, 749.' Seeger v. Odell, 18 Cal.2d 409 415, 115 P.2d 977, 981, 136 A.L.R. 1291. This rule (seldom applied) is tempered by the further consideration that: 'Exceptionally gullible or ignorant people have been permitted to recover from defendants who took advantage of them in circumstances where persons of normal intelligence would not have been misled. * * * 'No rogue should enjoy his ill-gotten plunder for the simple reason that his victim is by chance a fool.'' Seeger v. Odell, supra. On the criminal side it is recognized that '[t]he guilty party is prosecuted in the interest of the people of the state, and not in the interest of the party defrauded.' People v. Skidmore, 123 Cal. 267, 268, 55 P. 984, 985. Foolish reliance by the victim of a preposterous fraud does not require that one who has violated the statute should go free on that account. 'In determining in cases like the present whether the defrauded party really believed and acted upon the representations of the accused, it is proper to consider whether they were of a character to probably induce belief in his mind, or in the mind of any person of ordinary intelligence; but the law, as it is at this day understood, [does not make it essential to conviction that the pretenses must have been such as would probably deceive such a person]. The guilt of the accused does not depend on the degree of folly or credulity of the person defrauded. The rule invoked affords no defense against a criminal charge.' People v. Cummings, 123 Cal. 269, 272, 55 P. 898, 899. To the same effect are People v. Smith, 3 Cal.App. 62, 65-66, 84 P. 449; People v. Bellew, 90 Cal.App.2d 801, 802, 203 P.2d 822; 22 Am.Jur. § 27, p. 459; 35 C.J.S., False Pretenses, § 15, p. 652; 25 C.J. § 26, p. 598.

Review of the evidence must be governed by the rule laid down in People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 780: "* * * before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground' of insufficiency of the evidence, 'it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. * * * We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.' If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.'

On August 19, 1954, defendant caused to be published in the Los Angeles Times, a metropolitan newspaper, the following advertisement: 'Investors Wanted, Inactive, for Nevada gambling enterprise. Will assure by contract 30% monthly profit on your investment from $300 to $300,000. P. O. Box 561, Glendale 5, California.' He received responses from four people, Michael V. Barton, Larry E. Robinson, J. B. Furman, and one Garber. All of them 'invested' in defendant's 'enterprise' and all but Garber were prosecution witnesses. Defendant's mode of approach and his subsequent procedure were substantially the same in each case. Following initial inquiry by a prospect defendant under an assumed name, Vincent Surrocco, ¹ sent him a letter, bearing no street address, merely a Glendale post office box, typified by the one addressed to Barton. It reads: 'Citrus 3-5991. Post Office Box 561, Glendale 5, California. August 30, 1954. Mr. M. V. Barton, 1771 Griffith Park Boulevard, Los Angeles 26, California. Dear Mr. Barton: I appreciate your interest in my advertisement in the Los Angeles Times. Since this operation is highly profitable to the investor, I don't feel it necessary to disclose the methods or details of operation other than to tell you that it is a Nevada gambling venture. As stated in the advertisement, I am preparing to give you as an investor a contract assuring you a 30% profit monthly on your investment. I realize that to the cautious investor this may not seem to be enough security, but one must remember that a highly profitable investment cannot be secured as the lowprofit type. Thus it is up to you to decide whether you prefer a 360% profit annually with the security mentioned or 6 to 8% annually with more security. As you can see, we all stand to gain more by pooling our investments to make the large profits available only on investments of huge sums of money.

'I am cooperating fully with those who have already invested in the venture. I have given several of them 60-day options in their contracts. If they are not satisfied with the profits at that time, I will return their investments in full. As you know, Nevada gambling is the most profitable business in operation, but it takes large sums of money to finance it. It is seldom that you will be offered an opportunity to invest in a venture that is as sound and still as profitable as this one.

'If after consideration, you are still interested in investing with us, please let me know as quickly as possible, giving me definite details as to the amount you wish to invest, and whether or not you wish the 60-day option. I will have your contract drawn up and will then contact you. Sincerely yours, V. Surrocco.' When the money was forthcoming a contract, drawn by defendant, was forwarded to the 'investor.' These contracts differed somewhat, but in the main followed the form furnished to Barton; so far as pertinent it reads: 'This agreement made the 3rd day of September, 1954, between Surrocco Enterprises * * * the party of the first part, and M. V. Barton * * * the party of the second part, witnesseth: That the said party of the first part, * * * hereby covenants with the said party of the second part that the said party of the first part will deliver to the said party of the second part at his home in said City and County of Los Angeles, monthly, beginning with the 3rd day of October, 1954, an amount equal to 30% of $300.00. * * *

'It is further agreed that this contract may be cancelled by either the said party of the second part or by the said party of the first part upon 30 days notice to the other interested party, at which time the said party of the first part will deliver to the said party of the second part the balance due as agreed upon in this contract.

'Included also in this contract is an option to be exercised on the 60th day after the signing of this contract. If the said party of the second part so desires he may request and receive from the said party of the first part the entire amount invested. However, should said party of the second part desire to leave his investment with said party of the first part, then after the sixtieth day it shall automatically revert to the first, second and third paragraphs of this contract. * * *'

It is claimed that these documents, being promissory in form, could not constitute a basis for a charge of false pretenses. It is settled, however, that a promise made with an existing intent not to perform may constitute a false pretense within the grand theft statute. People v. Ashley, 42 Cal.2d 246, 262-265, 267 P.2d 271; People v. Weitz, 42 Cal.2d 338, 343, 267 P.2d 295. The jurors in this case were justified in inferring that defendant at the time of making them intended not to perform his promises.

He operated under an assumed name and through a post office box without disclosure of his true name or his business or residential address. His advertisement offered to 'assure by contract 30% monthly profit on your investment from $300 to $300,000.' Thirty per cent of $300,000 is $90,000. The promise was to pay that much each month. Defendant had not the capacity to do this and hence it is an inevitable inference that he did not intend to do so. If that is true of the maximum amount, it would seem also true of the lesser sums, such as Barton's $300 investment.

Defendant's plan, so he testified, was to use the investors' money to play roulette in Las Vegas, not to run a gambling establishment but to play against the house. He claimed to have a tried system that would yield the promised return. Barton was told that the investment would be returned in case the venture failed. His contract contained both a 30-day...