People v. Marsh

• Decision Date: 16 November 1962
• Docket Number: Cr. 7178
• Citation: 376 P.2d 300,58 Cal.2d 732,26 Cal.Rptr. 300
• Court: California Supreme Court
• Parties: , 376 P.2d 300 The PEOPLE, Plaintiff and Respondent, v. John MARSH and John Crane, Defendants and Appellants.

Page 300

26 Cal.Rptr. 300

58 Cal.2d 732, 376 P.2d 300

The PEOPLE, Plaintiff and Respondent, v. John MARSH and John Crane, Defendants and Appellants.

Cr. 7178.

Supreme Court of California, In Bank.

Nov. 16, 1962.

Bertrand L. Comparet, San Diego, for defendants and appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

Defendants Marsh, Crane and Bateson were charged with attempted grand theft, conspiracy to commit grand theft, and conspiracy to violate section 2141 of the Business and Professions Code, the section prohibiting the practice of medicine without a license. They were convicted of all three offenses. Defendant Bateson has not appealed. Marsh and Crane appeal from the judgment of conviction and from the order denying their motion for a new trial.

The trial was a protracted one. The prosecution produced substantial evidence that defendants, none of whom possessed a medical license, worked together to obtain money from the sick and the neurotic on the false representation that the electric machines they possessed could cure almost any ailment. Most of the vital evidence was secured by undercover agents of the Food and Drug Administration, and is in the form of tape recordings of conversations between the defendants and the agents. This evidence, because of its nature, is uncontradicted. The prosecution evidence is overwhelming that such representations were made, that they were false, and that money was obtained from various persons based on such representations. Although the defendants denied that they 'sold' their machines, and claimed that they only loaned them, and that the payments were donations to their foundation, or rental for the use of the machines, or for instruction in how to use them, the evidence also shows that the form of the transaction was a mere subterfuge to avoid a charge of sale by the Food and Drug Administration. The amount secured from users of the machines varied between $175 to $2,000. It was usually exacted in the form of a 'donation' to defendants' nonprofit organization for the 'loan' of the machines. The evidence also shows that the $175 machine was identical in design with a device used commonly by radio and TV repairmen that retails for $49.95.

The first two counts of the indictment attempted grand theft and conspiracy to commit grand theft admittedly grew out of a connected series of transactions. In each instance, obtaining money by false representations, is the form of theft relied on by the prosecution, and the case was submitted to the jury on that theory. Under section 484 of the Penal Code an essential element of that offense is that defendant had the specific intent to defraud. (See People v. Simms, 144 Cal.App.2d 189, 194, 300 P.2d 898.) Under this section, even if the defendants made false representations but made them in the bona fide belief, based upon reasonable grounds, that they were true, no offense was committed. In other words, a conviction of theft based on false representations cannot be sustained if the false representations were made in the actual and reasonable belief that they were true. The burden of proof on this issue is on the prosecution (People v. Ashley, 42 Cal.2d 246, 264, 267 P.2d 271). It follows, as a matter of course, that a defendant is entitled, in such a case, to introduce proper evidence that tends to establish that he did not, in fact, possess the intent required by the code section. Such evidence may be introduced either to controvert the evidence produced by the prosecution, or to establish affirmatively the lack of the required criminal intent. It is elementary that if the prosecution can introduce evidence of a required specific intent, the defendant must be given the equal privilege of showing the lack of such intent (People v. Becker, 137 Cal.App. 349, 352, 30 P.2d 562).

In the instant case the conspiracy, the making of the false representations, and the obtaining of money by the defendants was proved by overwhelming evidence. The defendants' defense was twofold: (1) That the representations were true in that the machines possessed the curative powers represented, and (2) that even if the representations made were false they were believed by defendants to be true; that they were based upon certain reports received from certain doctors and scientists; that reliance on such reports was reasonable. The first defense was clearly refuted by the prosecution. The evidence demonstrates that the representations were false. The main point involved on these appeals relates to the second defense good faith reliance. In this connection, defendants properly produced some 15 witnesses who testified that the machines in question had in fact cured them of various ailments. The defendants were also permitted to testify that they relied on various reports of named scientists and doctors. But defendants were consistently prohibited from introducing into evidence the contents of the reports and conversations had with the doctors and scientists about the curative powers of the machines. In offering such evidence, defendants' counsel clearly stated to the trial court that he was not offering this evidence in the form of conversations, reports and letters to prove that the machines could cure, but was offering it solely to show the information the defendants relied upon in forming their belief that the machines could cure. While the trial court did permit defendants to testify that they had conversations with and had received communications from doctors and others commenting on the effectiveness of the machines, the trial court consistently excluded on objection of the prosecution the introduction of the contents of these conversations and communications on the ground that they constituted inadmissible hearsay. The fundamental basis of the trial court's rulings in this respect is shown by its statement that 'you can't use hearsay to balance a man's judgment, that is what we have the rules of evidence for. * * * There is no way that the prosecution could possibly cross-examine on the authenticity, the varacity or the qualifications of the person making the report, that is the reason for the rule.'

These rulings were clearly erroneous, and under the circumstances, prejudicial. The gist of hearsay is that it is an out-of-court utterance offered to prove the truth of what is asserted in the utterance. But here the evidence was offered not to prove the truth of the statements, but to show the mental state of the defendants, i. e., that they believed the machines did cure. Such letters, reports, and conversations offered for such purpose are not hearsay and are admissible. McCormick, Evidence (1954) states the proper rule as follows, at pages 464-465: 'When it is proved that D made a statement to X, with the purpose of showing * * * the information which X had as bearing on the reasonableness or good faith of the subsequent conduct of X, the evidence is not subject to attack as hearsay.' Wigmore says, 'Wherever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the Hearsay rule is concerned.' (6 Wigmore, Evidence (3d ed. 1940) p. 235. See also 1 Wharton, Criminal Evidence (12th ed. 1955) p. 591, 'The question is merely whether they had any effect upon the mental state of the defendant.')

California is in accord with this general rule. Thus, it has consistently and properly been held that the statements a police officer relies upon to make an arrest are admissible against hearsay objections, not to prove the truth of such statements, but to show the officer's state of mind (probable cause) in making the arrest. (People v. Fischer, 49 Cal.2d 442, 446, 317 P.2d 967; People v. King, 140 Cal.App.2d 1, 5, 294 P.2d 972; People v. Paul, 147 Cal.App.2d 609, 618, 305 P.2d 996.) In People v. Vogel, 46 Cal.2d 798, 299 P.2d 850, it was held that the defendant's good faith belief that he was divorced at the time of his second marriage was a good defense in a bigamy prosecution. It was there held to be prejudicial error not to admit defendant's testimony as to what his first wife had told him.

People v. Rosson, 202 Cal.App.2d 480, 20 Cal.Rptr. 833, is also in point. There a conviction of grand theft was reversed because the trial court improperly excluded evidence of a witness's efforts to return the automobile involved at defendant's request, which testimony if admitted and believed would have negated the specific intent required of the crime. The excluded testimony was held not to be hearsay.

In Laird v. T. W. Mather, Inc., 51 Cal.2d 210, 220, 331 P.2d 617, it was held that an out-of-court conversation concerning a previous accident was admissible to show that the defendant had knowledge of a dangerous condition. Also in point is the case of Smith v. Whittier, 95 Cal. 279, 30 P. 529. One of the issues in that personal injury action was the defendant's knowledge concerning the dangers connected with an elevator. This court held that the defendant could be asked to repeat conversations he had had concerning the elevator's operation. At page 293, at page 532 of 30 P., the court said that this out-of-court conversation was not 'within the rule which excludes hearsay. * * * If the fact sought to be established is that certain words were spoken, without reference to the truth or falsity of the words * * * the testimony of any person who heard the statement is original evidence, and not hearsay.'

There are many cases from other jurisdictions on the point under discussion. Only a few need be mentioned. In Frank v. United States, 10 Cir., 220 F.2d 559, defendant was charged with using the mails to defraud. The defense was that the defendant...