People v. Mills

• Decision Date: 08 February 1957
• Docket Number: Cr. 5725
• Court: California Court of Appeals Court of Appeals
• Parties: , Blue Sky L. Rep. P 70,333 The PEOPLE of the State of California, Plaintiff and Respondent, v. Homer C. MILLS and J. Frank Cavanaugh, Defendants and Appellants.

Page 1005

306 P.2d 1005

148 Cal.App.2d 392, Blue Sky L. Rep. P 70,333

The PEOPLE of the State of California, Plaintiff and Respondent, v. Homer C. MILLS and J. Frank Cavanaugh, Defendants and Appellants.

Cr. 5725.

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

Feb. 8, 1957.

As Modified on Denial of Rehearing Deb. 25, 1957.

Hearing Denied April, 2, 1957.

Homer C. Mills in pro. per.

J. Frank Cavanaugh in pro. per.

Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Convicted on ten charges of violation of the Corporate Securities Act, two counts of grand theft and one accunsation of conspiracy to commit those crimes, defendant Mills appeals from the judgment and from an order denying his motion for new trial. His codefendant, Cavanaugh, was jointly charged with him and convicted on the conspiracy count and three counts of violation of the Corporate Securities Act. He appeals from an order granting him probation, Pen.Code, § 1237, subd. 1, and from an order denying his motion for new trial. Each defendant also attempts to appeal from an order denying his motion in arrest of judgment. The conspiracy charge originally included one Paul H. Kroger, as did certain other counts of the information. Near the close of the People's case he was dismissed on motion of the prosecution because of insufficiency of the proof against him. The appeals will be considered separately for reasons which will be readily apparent as the discussion progresses.

Mills raises three major contentions, (1) former jeopardy, (2) unlawful search and seizure, and (3) insufficiency of the evidence.

As to former jeopardy. At a previous trial upon the same information the judge, when he resumed the bench for the afternoon session, stated that the prosecutor and police lieutenant William C. Hull had that morning been guilty of misconduct of such grievous nature that a motion for mistrial would be entertained if defendants should elect to make one, pointing out that they alone could take advantage of the situation. Defendants promptly made the motion and it was granted. The consent inherent in such a motion precludes a later claim of double jeopardy. People v. Kelly, 132 Cal.App. 118, 121-122, 22 P.2d 526; People v. Baillie, 133 Cal.App. 508, 513, 24 P.2d 528; People v. Agnew, 77 Cal.App.2d 748, 760, 176 P.2d 724; People v. Finch, 119 Cal.App.2d Supp. 892, 898-899, 258 P.2d 1124.

In an attempt to neutralize the effect of that general rule Mills asserts that his motion was made under duress brought about by the fear of contempt should he decline to follow the judge's suggestion. In his testimony defendant referred to himself as a retired lawyer (he had been disbarred, Mills v. State Bar, 6 Cal.2d 565, 58 P.2d 1273), and 'expert lawyer,' and further said, 'I have had a great many years' experience in the practice of law, previous to that time, and since that time, attending to my own affairs.' His conduct of the trial in propria persona, and his briefs on appeal, show that he has had adequate court experience and is at home in that field. The claim of fear of contempt does not possess a semblance of merit. The court did not err in denying the plea of double jeopardy.

The claim of an unlawful search and seizure presents a serious question. Count 14 of the information charges Mills with violation of the Corporate Securities Act, Corporations Code, § 26104(a), through sale and issuance to William C. Hull of shares of stock in Searchlight Uranium Corporation, a Nevada corporation, without having applied for or secured from the Commissioner of Corporations of the State of California a permit to do so. Hull, a lieutenant of police, posing as a prospective investor, agreed to buy from Mills 30,000 shares of stock in said corporation for the sum of $3,000. Mills represented himself to be sole owner of the corporation and the Blossom Mine which it operated. He gave Hull a written memorandum of the sale, which is set forth in the margin. ¹ That was on December 16, 1954. On the following day Hull took a witness with him to Mills' office in the Clark Hotel in Los Angeles, and there delivered to Mills a certified check for $3,000, payable to Hull but not endorsed. Mills handed him a certificate of stock (No. 69) issued in favor of Hull and wife as joint tenants. It was signed by Mills as president, and Kroger as secretary. While Mills was examining the check Hull handed him an identification card showing his official status, told him he was under arrest for violation of the Corporate Securities Act, took possession of the check and kept the stock certificate. Hull knew Mills had no permit to sell stock in California; he had representatives of the Division of Corporations waiting outside, Messrs. Stern and Naslund. Following the arrest of Mills, Lieutenant Hull called into the room the investigators just mentioned and two police officers who were also waiting. Mills had two rooms in the hotel, one of which was used as an office and the other as a bedroom. Off the office was a small closet-like room or recess. It will be noted that Hull had in his possession all the knowledge and evidence he needed to make a case on the sale of the stock to him. He knew there was no corporate permit; he had the written contract of sale, the stock certificate and the check; he also had a witness to the transaction, Mrs. Asdell, a policewoman; and Mills in her hearing had told Hull that he owned all the stock in the corporation and in effect that the proceeds of the same would be used for corporate purposes, thus making a case in which the statutory exemption concerning sales of one's own stock would not apply (authorities, infra). With respect to the crime for which Mills was arrested, Lieutenant Hull had no occasion to make any search whatever. ² He had no search warrant and it is not claimed that Mills consented to the search.

What happened in that connection is told by Lieutenant Hull in his testimony: 'I told the officers that were with me at that time and the investigation from the Division of Corporations that * * * Jack Stern and Naslund from the Division of Corporations, and Lorrettivich and James and one or two other officers from the Bunco Division, Detective Bureau, Los Angeles Police Department. * * * I told Mr. Stern and Mr. Naslund and Officer Nelson and James and the other officers that I wanted the entire office searched as well as the adjoining room. I told them that I was looking for all things having to do with stock, stock promotion, assays, mines, ores, letters, letters that showed, that would reveal other investors, books and ledgers and various papers that would pertain to stock promotion, stock activities, and to call my attention to anything they found, and to let me see, and see where it was before they removed it and we would obtain--I directed one of them to obtain two or three cartons, cardboard cartons, and then Mr. Mills was seated there in the office and the various officers and investigators began a search of the premises. * * * Various pieces of--various items were called to my attention and I reached the decision as to whether they were of evidentiary value. * * * Various items were called to my attention. I directed items to be placed in the cartons and other items to be left where they were.' The witness further testified that the officers searched through file cabinet drawers, the desk, the table, desk drawers, a correspondence file, all in the front room; that he directed Jack Stern of the Division of Corporations to make a thorough search of the bedroom, which Stern reported he had done. There were at least six persons conducting the search in addition to Lieutenant Hull and Mrs. Asdell. It took 45 minutes or more and produced a large volume of incriminating evidence, somewhere from 500 to 1,000 documents. It was not directed toward discovery of the instrumentalities or evidence of the crime for which Mills was arrested, but for evidence of commission of other similar crimes. Throughout the search police photographers were present and busily engaged in taking pictures. Before it was started Lieutenant Hull had never heard of the other persons named in the information as victims of Mills' violations of the law; neither had the deputy district attorney who prepared the information; it was based upon facts obtained from the seized documents. The trial judge remarked that 'it is true that the evidence shows that the arresting officer and for all we know, any other law enforcement agency, at least the Police Department and the District Attorney's office, knew nothing about these various persons named in counts 1 to 12 until the search and seizure, however, the arrest was a lawful arrest.' At the trial the prosecution witnesses who testified to charges other than count 14, which related to the Hull transaction, were persons whose identity and testimony had been discovered and procured through the seized documents. The testimony of each revolved around one or more of the seized instruments.

If the search and seizure were unlawful, the heart of the proof upon each count other than 14 'was a fruit of the poisonous tree.' ³ With substitution of names we agree that 'if only the fate of the Millses and the Cavanaughs were involved, one might be brutally indifferent to the ways by which they get their deserts.' ⁴ But as our Supreme Court observed in People v. Cahan, 44 Cal.2d 434, 439, 282 P.2d 905, 907: '[w]hen consideration is directed to the question of the admissibility of evidence obtained in violation of the constitutional provisions, it bears emphasis that the court is not concerned solely with the rights of the defendant before it, however guilty he may appear, but with the constitutional right of all of the people to be secure in their homes, persons, and effects.' And again, 44 Cal.2d at page 446, 282 P.2d at page 912: 'Thus, no matter how guilty a...