People v. Platt

• Decision Date: 24 March 1954
• Docket Number: Cr. 5122
• Citation: 268 P.2d 529,124 Cal.App.2d 123
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. PLATT.

Page 529

268 P.2d 529

124 Cal.App.2d 123

PEOPLE v. PLATT.

Cr. 5122.

District Court of Appeal, Second District, Division 3, California.

March 24, 1954.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., S. Ernest Roll, Dist. Atty., Jere J. Sullivan and Robert Wheeler, Deputy Dist. Attys., Los Angeles, for appellant.

Jerry Giesler and Rexford D. Eagan, Beverly Hills, for respondent.

VALLEE, Justice.

Appeal by the People from an order granting a motion of defendant to set aside the information charging him with two counts of grand theft and four counts of forgery, on the ground he had been committed without reasonable or probable cause. Pen.Code, § 995.

In the information, defendant was accused of feloniously taking $2,500 and $5,000 in money from Michael Epstein and Robert Saltzman; and of forging four merchandise purchase orders, each in the sum of $69.22, publishing and passing them knowing they were false, with intent to defraud each of the four purported purchasers, Michael Epstein, and Robert Saltzman.

Defendant owned a franchise from a manufacturer, covering several California counties, for the sale and distribution of Stroll-O-Chairs, a baby item combination. He also operated the Baby Research Institute through which the combinations were sold. Through an advertisement in a Los Angeles newspaper in which defendant offered to sell exclusive distributorships, he was contacted by Michael Epstein. Epstein was a merchant and manufacturer of infant goods and had a baby items store. About September 11, he went to the Institute; defendant demonstrated the product and explained the modus operandi of the business: how many salesmen would be needed, the number of potential buyers based on population and number of births a day and prenatal cases, and possible profits. Afterwards, Epstein discussed the matter with his neighbor, Robert Saltzman, who in turn contacted defendant a few days later.

After several conversations between defendant and Epstein and Saltzman, it was agreed that the latter two would buy the entire franchise for $7,500. Epstein and Saltzman testified that defendant had at different times told them he had between 150 and 175 orders for combinations which he would turn over to them, and that they were walking into an established business. By oral agreement, Epstein and Saltzman were to receive 150 or more bona fide orders; defendant was to stay with them for thirty days, train them, show them how to organize salesmen, and help them obtain a franchise direct from the manufacturer. Saltzman gave defendant a check for $200 as a deposit.

On October 1, 1952, the agreement was reduced to writing by attorneys for Epstein and Saltzman and signed by the parties. Defendant warranted, in the agreement, that prior to its execution 'he has taken orders for not less than 100 Combinations, delivery of which have not as yet been made.' The figure '100' was written in ink in the typewritten agreement. Defendant agreed to assign such orders to Epstein and Saltzman and to deliver to a trustee all moneys in excess of $5 per order which he had received from purchasers on account of the orders, such moneys to be held and distributed in accordance with certain instructions. Epstein and Saltzman agreed to pay defendant $7,500: payable $2,500 on the execution of the agreement, receipt of which was acknowledged; $5,000 not later than November 1, 1952, on condition that the franchise had been delivered by that date. They also agreed to pay the dollar value of the inventory on hand as of October 1, 1952. Saltzman testified to what transpired at the time the figure '100' was inserted in the blank space: that on October 1st, he had counted 147 purchase orders which had been lying in a desk drawer at the Institute; however, defendant was supposed to 'turn in' 150 orders to them; defendant said, 'What must I do now while I'm in here? Should I go out and sell three or four to make the 150? Then I suggested * * * 'I have counted 147 orders. * * * I am perfectly satisfied to have a figure put in no less than 100. On the rest, I'm sure that there is 147.''

Defendant remained with the business for nearly one month. On October 1, Saltzman began to take an active part in the business, and during October he was in the store every day and worked closely with defendant. During the first part of that month Epstein did not give much time to the business.

Prior to October 1, defendant employed approximately 23 salesmen. In October, defendant interviewed from 150 to 200 prospective salesmen, during which interviews defendant wrote out sample or demonstration orders in their entirety, including the names of purchasers and salesmen. These orders were not destroyed. 'A lot' of additional salesmen were employed. Defendant did not go out into the field and solicit purchasers. Epstein and Saltzman continued to subscribe to a service that gave them a weekly report of the names of new and of expectant mothers.

During October, about 75 purchase orders were received and were placed in the desk drawer. Epstein testified, 'Some [of the orders] that were sold I may have thrown away.' Defendant entered some of the orders on a yellow work sheet, but it was not an accurate tab of the orders. Saltzman testified that he did not keep any records of any kind of the business during October nor at any time thereafter. All of the orders, both prior to and after October 1, were kept in a desk drawer and were neither filed nor segregated. The moneys received during October were deposited in the account of the trustee in accordance with the terms of the agreement. During the month, about 5 deliveries of chairs were made to customers.

Epstein and Saltzman obtained the franchise and inventory, and defendant received the money: $200 deposit on October 1, $2,300 on October 3, and $7,500.68 on October 28. The latter sum included $2,500.68 for the inventory.

On October 28 or 29, defendant returned to New York because of the illness of his wife, a fact known to Epstein and Saltzman. He gave them his New York telephone number. The sample or demonstration orders, together with all other records of the business, both prior and subsequent to October 1st, were left with Epstein and Saltzman. At that time, Epstein for the first time counted the purchase orders and found either 150 or 158 orders.

In the middle of December, 1952, after calling 'four or five' of the purported purchasers in order to deliver the combinations, Epstein, with Saltzman listening on an extension, telephoned defendant in New York and told him that the orders that were left were forgeries. Epstein testified that defendant threatened he would see they did not receive any merchandise from the factory if they tried to get him back to California. As a result of the conversation Saltzman went to the Stroll-O-Chair factory in New York and took with him 'quite a few' of the 147 orders that he had counted on October 1st. He testified that 'by mistake' he left 'between 30 and 40 orders' on the desk in the office of the company. No deliveries had been made to any of the purported purchasers whose names appeared on the orders, but Epstein had called four or five of them. Saltzman then went to Buffalo, New York, where he saw defendant and told him what had occurred: the people whom they called knew nothing about the orders--never placed any orders; and if defendant did not give the money back, he would go to the district attorney. Defendant replied that the orders were given to him by the salesmen. Saltzman did not show defendant any of the orders that he had taken with him to the factory.

Originally defendant was charged in eight counts with forging merchandise purchase orders. At the preliminary hearing, the People introduced in evidence 97 purchase orders. ¹ Saltzman identified them and stated that of these 74 were a part of the 147 he had counted on October 1. Three salesmen testified. Their testimony related to 71 of the orders in evidence that were purportedly solicited and signed by them. Each testified he had not procured nor signed the orders. Only one of them actually had ever sold any combinations. One of the salesmen, Mr. Eden, testified he never prints his name when he signs it; however, on the orders that were purportedly secured by him, his name is printed. ² The testimony of the three salesmen was also to the effect that of the 74 orders that Saltzman testified were included within the 147 he had counted on October 1st, they had not solicited 62 of them. Nine of these purported orders were dated on or after October 2, 1952.

Eight of the purported purchasers (women) testified they had neither authorized the purported purchases nor had signed the orders. On the date the apparent orders were taken, each of them lived at the address as shown on her respective purported order. Six of the women stated that they each had a child who was born within a period thirty days prior to the date shown on their respective purported orders as the date on which the orders were taken. ³ The testimony brought out the fact that seven children of the purported customers were born within the first four days of September, 1952.

An expert witness identified the printing and writing on Exhibits E, F, U, and Y, a total of 22 orders, as that of defendant; the handwriting on the other exhibits was not that of defendant. Subsequently, the four counts evidenced by Exhibits A, B, C, and D were dismissed. The other four counts for forgery were retained and were incorporated in the information as counts III, IV, V, and VI.

The basis for the charges of grand theft lies in the alleged failure of defendant to turn over to Epstein and Saltzman on October 1, 1952, one hundred bona fide orders. It is contended that defendant warranted that he had 100 bona fide orders; that since 62 of the orders were not solicited nor written by the salesmen whose names appear on them, and inasmuch as Saltzman had...