People v. Hohensee
| Decision Date | 19 May 1967 |
| Docket Number | Cr. 2426 |
| Citation | 59 Cal.Rptr. 234,251 Cal.App.2d 193 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Adolphus HOHENSEE and Donald K. Smith, Defendants and Appellants. |
Adolphus Hohensee and Donald Kenneth Smith appeal from judgments of conviction entered upon jury verdicts of conspiracy to cheat and defraud, etc. (Pen.Code, § 182(4)) and conspiracy to advertise a drug or device represented to have any effect in certain diseases, in violation of Health and Safety Code, section 26286.5 (Pen.Code, § 182(1)).
Defendants' convictions stem from health lectures given by them in San Diego in 1962.
Smith, one of Hohensee's traveling managers, arranged the San Diego lectures. He rented the Continental Room of the San Diego Hotel; placed advertisements in local newspapers; visited health food stores, placing posters in their windows and soliciting their mailing lists; hired local workers to assist his management of the lectures. At the lectures, Smith punched tickets, collected fees charged for special classes, and generally supervised collection of solicited contributions and sale of pamphlets. On occasion, he lectured.
Hohensee was the principal lecturer. The majority of the audience was over fifty years old. Hohensee instructed in part; Mercurochrome causes cancer; the white of an egg will heal a third degree burn without leaving a scar; protruding blood vessels on the back of the hand may indicate hardening of the arteries; Salk vaccine causes more polio than it cures, the Sabine vaccine is worse; a twenty-eight day diet of onion and water will eliminate arthritis, hardening of the arteries, heart condition and cancer; radioactive material in fig seeds will prevent and eliminate cancer; a diet of apple juice and olive oil will eliminate gall stones; 'Elixir of the Gods' (honey) will eliminate arthritis, cleanse the heart of mucuous and pus, and, if applied to the eye, will remove cataracts; through iris diagnosis he can tell which bones in the body were broken and what major operations were performed in the past, and mental and physical diseases likely to afflict within the next three to seven years. Expert testimony refuted each of these claims. Many more claims were made; but, being cumulative, they will not be recited here.
Lecturing Hohensee elicited sympathy. He spoke, in his words, of the Rockefeller drug trust, and the American Medical Association, which he often called the American Murder Association. He charged these groups with prescribing unnecessary dope, drugs and surgery, solely for profit. They will go to any lengths, he instructed to eliminate views contrary to accepted profit motivated medical opinion. He told of a medical doctor killed for daring to challenge their views.
Hohensee described the efforts purportedly taken to eliminate him. He asserted the medical-drug trust spends $250,000 annually, through its stooge, the Federal Food and Drug Administration, attending his lectures and trying to catch him violating the law. He told of being unjustly arrested more times than he has fingers and toes. He described an earlier conviction, followed by brutal physical treatment in a Federal prison. He expressed concern over the possibility of arrest in San Diego, expecting 'prevarications' of arrest in the newspapers. He announced he smuggled lecture notes into San Diego from Mexico and knew if he lectured contrary to accepted medical opinion, in his words, 'to the hoosegow I must go.'
Because he recognized his views were contrary to accepted medical opinion, Hohensee repeatedly instructed he was not a physician, licensed in this State, nor willing to diagnose, prescribe or grant interviews, stating: 'That disclaimer should hold the stooges that are in here.' He proceeded to solicit written questions and to answer them, stating: 'I can do that without violating any laws. * * *'
Hohensee's announced purpose was to teach a health study class, and not to conduct a selling class. He purported to give away, among other things, lucite graters, 'Elixir of the Gods', wrinkle removing cream and many health hints and diets. He explained, however, he operates without an endowment. He interrupted the lectures to pass out envelopes for contributions, stating at one lecture:
At one lecture, deeming the collected contributions inadequate, he ordered a second collection. At another lecture he recited:
'Oh, I'll keep giving things away free around here, * * *'
Defendants charged $25 for their special classes, rather than the $50 represented as their regular fee. At the classes they sold blenders for $49.95 and tenderizers for $250. The blenders cost them $18.59.
Defendants make thirteen unmeritorious contentions:
1) The indictment failed to give defendants notice of the offenses charged.
The indictment is couched in the language of Penal Code, sections 182(1) and 182(4), and Health and Safety Code, section 26286.5, and lists ten overt acts. Pleading in terms of these statutes sufficiently notified of the offenses charged (People v. Singer, 217 Cal.App.2d 743, 32 Cal.Rptr. 701; People v. Docherty, 178 Cal.App.2d 33, 2 Cal.Rptr. 722; People v. Mills, 162 Cal.App.2d 840, 328 P.2d 1049; see People v. Lamb, 204 Cal.App.2d 255, 22 Cal.Rptr. 284; People v. Mason, 184 Cal.App.2d 317, 7 Cal.Rptr. 627). The overt acts charged, contrary to defendants' assertion, need not be criminal acts (People v. Docherty, supra, 178 Cal.App.2d 33, 2 Cal.Rptr. 722; People v. George, 74 Cal.App. 440, 241 P. 97; see People v. Saugstad, 203 Cal.App.2d 536, 21 Cal.Rptr. 740; People v. Garcia, 187 Cal.App.2d 93, 9 Cal.Rptr. 493; People v. Robinson, 43 Cal.2d 132, 271 P.2d 865). Defendants, furthermore, were given a copy of the grand jury transcript, which notified them of the charges (Callan v. Superior Court, 204 Cal.App.2d 652, 22 Cal.Rptr. 508; People v. Anderson, 55 Cal.2d 655, 12 Cal.Rptr. 500, 361 P.2d 32; People v. Roberts, 40 Cal.2d 483, 254 P.2d 501; People v. Gilbert, 26 Cal.App.2d 1, 78 P.2d 770.)
2) Tape recording the lectures constituted an unreasonable search and seizure.
Food and Drug Inspector Charles M. Duggie entered a loft above the Continental Room with the hotel's consent, placed a microphone three feet from a loudspeaker set in the Continental Room's ceiling and recorded defendants' lectures. As in People v. Jefferson, 230 Cal.App.2d 151, 40 Cal.Rptr. 715, and People v. Norton, 209 Cal.App.2d 173, 25 Cal.Rptr. 676, this case is unlike Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d i88, and Britt v. Superior Court, 58 Cal.2d 469, 24 Cal.Rptr. 849, 374 P.2d 817, upon which defendants rely. Duggie did not spy on defendants through holes bored or other openings made for spying into a private place. The lectures were public. His hearing what the audience heard was not a search (People v. Holloway, 230 Cal.App.2d 834, 41 Cal.Rptr. 325; People v. Norton, supra, 209 Cal.App.2d 173, 25 Cal.Rptr. 676; People v. Roberts, 182 Cal.App.2d 431, 6 Cal.Rptr. 161).
Unlike Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, upon which defendants rely, placing the microphone in the loft three feet from the loudspeaker was not an unauthorized physical intrusion into a private area. (See People v. Hughes, 241 Cal.App.2d 622, 50 Cal.Rptr. 716; People v. Rucker, 197 Cal.App.2d 18, 17 Cal.Rptr. 98; People v. Graff, 144 Cal.App.2d 199, 300 P.2d 837.) At trial, furthermore, at one point Hohensee announced: 'As far as I am concerned, I want everything played so the jury and his Honor can hear all the truth.'
3) The trial court erroneously admitted the portion of the taped lectures in which Hohensee referred to his prison record.
Hohensee bragged, as recorded, he had been 'hailed' into court more times than he had fingers and toes, and, among other things, had been railroaded into Federal prison; these arrests resulted from his daring willingness to lecture contrary to accepted medical opinion. The rule respecting evidence of other acts or conduct is well-stated by our Supreme Court in People v. Lopez, 60 Cal.2d 223, 249--250, 32 Cal.Rptr. 424, 439, 384 P.2d 16, 31:
(People v. Peete (1946) 28 Cal.2d 306, 314--315(1), 169 P.2d 924.)'
Hohensee's statements tend logically, naturally, and by reasonable inference to establish a general scheme, including the instant offenses, of defrauding by eliciting sympathy, by self description as a martyr willing to suffer the consequences of challenging the so-called medical-drug trust in order to spread health truths, by apparently giving away advice, literature and...
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