People v. Griesheimer ( 1917 )

The defendant was convicted of the crime of obtaining money by false pretenses under section 532 of the Penal Code, and prosecutes this appeal from the judgment and from an order denying a new trial.

1. It is claimed by the appellant in support of this appeal that his general demurrer to the information should have been sustained. The charging part of the information is as follows:

"The said Frederick Griesheimer on or about the 25th day of May, A.D. nineteen hundred and fifteen, at the said City and County of San Francisco, State of California, then and there devising and intending by unlawful ways and means, and by false and fraudulent pretenses and representations to obtain and get into his possession the goods, money and personal property of one Karl Muck with intent then and there to cheat and defraud the said Karl Muck of the same, did then and there willfully and unlawfully, knowingly and designedly, falsely and fraudulently, pretend and represent to said Karl Muck that he, the said Frederick Griesheimer, was then and there employed by the 'Fatherland Magazine,' a corporation, organized and existing under and by virtue of the laws of the State of New York, and that he, the said Frederick Griesheimer, was then and there authorized, empowered and instructed by said corporation to solicit loans and subscriptions on behalf of said corporation and that he, the said Frederick Griesheimer, was then and there authorized and empowered by said corporation to receive and receipt for said subscriptions and loans for and on behalf of the said corporation, and that he, the said Frederick Griesheimer, had then and there solicited and received several, specific and distinct contributions of money from the following German-American citizens of the City and County of San Francisco, State of California, to wit: that N. Ohlandt of San Francisco, California, had subscribed for and paid to him, the said Frederick Griesheimer, one hundred and fifty (150) dollars in lawful money of the United States of America, for and on behalf of said corporation; that E.L. Hueter of San Francisco, California, had subscribed for and paid to him, said Frederick Griesheimer, the sum of three hundred (300) dollars in lawful money of the United States of America, for and on behalf of the said corporation; that C.E. Grunsky of San Francisco, California, had subscribed for and paid to him, the said Frederick Griesheimer, the sum of three hundred (300) dollars in lawful money of the United States of America, for and on behalf of said corporation; that Max Schmidt of San Francisco, California, had subscribed for and paid said Frederick Griesheimer, the sum of seventy-five (75) dollars in lawful money of the United States of America, for and on behalf of said corporation, and the said Frederick Griesheimer did then and there show and exhibit to said Karl Muck, a certain written list which said Frederick Griesheimer then and there represented contained the names of each of said parties so subscribing together with the amounts subscribed by each written in the individual handwriting of each of the said parties so subscribing respectively.

"Whereas, in truth and in fact, he, the said Frederick Griesheimer, was not then and there employed by the said 'Fatherland Magazine,' a corporation, organized and existing under and by virtue of the laws of the State of New York, and he, the said Frederick Griesheimer, was not then or there authorized, empowered or instructed, by said corporation to solicit loans or subscriptions on behalf of said corporation, and he, the said Frederick Griesheimer, was not then or there authorized or empowered by said corporation to receive or receipt for any subscription or loans for or on behalf of said corporation, and he, the said Frederick Griesheimer, had not then or there solicited or received the several and distinct contributions of money from said German-American citizens of San Francisco, California, as said Frederick Griesheimer then and there represented to said Karl Muck; that N. Ohlandt of San Francisco, California, had not subscribed for or paid to him, the said Frederick Griesheimer, the sum of one hundred and fifty (150) dollars in lawful money of the United States of America, or any sum in excess of fifty (50) dollars for or on behalf of said corporation; that E.L. Hueter of San Francisco, California, had not subscribed or paid to him, the said Frederick Griesheimer, the sum of three hundred (300) dollars in lawful money of the United States of America or any sum in excess of twenty (20) dollars for or on behalf of said corporation; that C.E. Grunsky of San Francisco, California, had not subscribed for or paid to him, the said Frederick Griesheimer, the sum of three hundred (300) dollars in lawful money of the United States of America or any other sum of money whatsoever for or on behalf of said corporation; that Max Schmidt of San Francisco, California, had not subscribed for or paid to him, the said Frederick Griesheimer, the sum of seventy-five (75) dollars in lawful money of the United States of America, or any other sum for or on behalf of said corporation; that said written list which said Frederick Griesheimer showed and exhibited to said Karl Muck, as aforesaid, was not signed by either said Max Schmidt or said C.E. Grunsky and the amount and amounts as shown on said list as being subscribed by said N. Ohlandt and said E.L. Hueter were false and fraudulent and he, the said Frederick Griesheimer, did not have any authority whatsoever then or there or at any time to solicit subscriptions for said corporation or to solicit loans for said corporation, and had not authority of any kind or description from said corporation, as he, the said Frederick Griesheimer, then and there well knew:

"And the said Karl Muck then and there believing the said false pretenses and representations so made as aforesaid by the said Frederick Griesheimer, to be true and relying thereon and being deceived thereby was induced by reason of said false and fraudulent pretenses and representations so made as aforesaid to deliver, and did then and there deliver to said Frederick Griesheimer the sum of three hundred (300) dollars in lawful money of the United States of America of the value of three hundred (300) dollars in gold coin of the United States of America and of the goods and personal property and moneys of the said Karl Muck; and the said Frederick Griesheimer then and there by means of the said false and fraudulent pretenses and representations so made as aforesaid, did then and there willfully and unlawfully, knowingly and designedly and fraudulently receive and obtain from the said Karl Muck the said goods and personal property and money hereinbefore described with intent to cheat and defraud Karl Muck of the same, and the said Frederick Griesheimer did then and there willfully and unlawfully take and carry away the same."

The particular defect in this information, as urged by appellant, is that it does not show the causal connection between the false pretense and the parting with the property by the prosecuting witness, and therefore fails to state facts sufficient to constitute a public offense.

We are of the opinion that as against the defendant's general demurrer the information should be held sufficient on appeal. While there is no direct allegation that the money was paid to the defendant as a subscription or loan to the "Fatherland Magazine," a reader of the information could hardly draw from it any other inference than that the payment was made for such purpose. It may be conceded that a direct allegation to this effect would have been more in accord with technical requirements. But what was intended to be charged in this connection is perfectly plain from the language in fact used, and no person of common understanding could fail to understand that it was substantially charged, by necessary inference at least, that the money was paid because of the alleged false representations, and for the purpose suggested thereby. Section 4 1/2, article VI, of the Constitution provides that "no judgment shall be set aside, or new trial granted, in any case, . . . for any error as to any matter of pleading, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." We are satisfied that to reverse the judgment on this ground would be to entirely ignore this provision of our Constitution.

2. Complaint is made as to a certain instruction given to the jury. The court instructed the jury as follows:

"In a case of this kind there can be no actual fraud, and there can be no criminal offense, unless the prosecuting witness was actually defrauded; or, in other words, unless the prosecuting witness sustained an actual injury from the alleged false representations. It is not sufficient that the prosecuting witness parted with his money by reason of the alleged false representations, but it must also be proved and established, beyond all reasonable doubt and to a moral certainty, that the prosecuting witness actually sustained a money injury by reason of the same.

"As an amplification of that instruction, and with a view, perhaps, to further and better explain the doctrine which it announces, I will say to you that if a list purporting to contain the names of subscribers to any fund, whatsoever may be its character, is exhibited to another person with a view of inducing him also to subscribe for the fund, and false statements are made as to the giving of subscriptions by some of those whose names are written down upon the fund list, and if misrepresentations are made as to amounts actually subscribed or contributed by some of those whose names are written down upon the fund list, and the party making those misrepresentations knows, at the time he makes them, that they are false, and makes them with intent to thereby prevail upon or induce the party to whom they are made to subscribe money to the fund and to deliver money over to him to be applied to the fund or purpose, and if, as a matter of fact, those statements made under those circumstances are, by the party to whom they are made, believed to be true, and if he by reason of that fact — namely, his belief in the truth of the representations — subscribes toward the fund and actually pays over money to be applied to it, and he is induced so to do, I think I have already stated, by reason of the misrepresentations made under those circumstances — the party so making those misrepresentations would, as a matter of law, be guilty of the offense of obtaining money under false pretenses.

"In order to constitute the offense of obtaining money or property by false or fraudulent representations, or pretenses, four separate and distinct things must concur: First, there must be an actual fraud committed; second, false pretenses must be used for the purpose of perpetrating the fraud; third, the fraud must be accomplished by means of the false pretenses, and the false pretenses must be made use of for that purpose, and the false pretenses must be the cause which induced the owner to part with his money or property; fourth, there must be an intent to defraud; and where one is charged with the commission of such crime, before he can be convicted, you must find, beyond a reasonable doubt and to a moral certainty, that each and all of such elements existed and concurred. . . .

"If you find that some of the alleged false representations set forth in the information — one or more, but not all — have been established to a moral certainty and beyond all reasonable doubt, and further find, to a moral certainty and beyond all reasonable doubt, that the complaining witness was induced, by reason of his belief in the existence of one or several of the alleged false representations, and he was by reason of his belief in their existence induced to part with his money — you would in that case adjudge the defendant guilty, provided you so find, of course, to a moral certainty and beyond all reasonable doubt.

"If you entertain any reasonable doubt as to whether any one of those false representations has been established to a moral certainty and beyond all reasonable doubt, or if you entertain any reasonable doubt as to whether — assuming that you do find false representations to have been made; if you entertain any reasonable doubt as to whether they, or any one of them or any several of them, caused or induced the complaining witness to part with his money — why, of course, in that case also it would be your duty to return in the case a verdict of not guilty.

". . . And I think I have made it clear to you, and will again undertake to state the proposition, that, if there be any one false pretense or representation of the several charged in the information, which you find, to a moral certainty and beyond all reasonable doubt, to have been made by the defendant, and which one misrepresentation you further find, to a moral certainty and beyond all reasonable doubt, caused or induced the complaining witness to part with his money — why, that would meet every requirement of the law quite as much as if each and every one of the false pretenses or representations so charged were shown to exist, and so shown to a moral certainty and beyond all reasonable doubt."

It is earnestly urged that the particular instruction commencing with the words, "As an amplification of that instruction," is erroneous, in that it directs a conviction on proof of the falsity of only one of the alleged representations as to the amounts subscribed by the various persons whose names appeared on the list shown Mr. Muck, even though the jury was not satisfied that the particular representation was a material inducement to Mr. Muck's subscription. Of course, it is admitted that where an information charges several false pretenses a conviction may be had and will be sustained by proof of only one of such pretenses, provided it be established to the satisfaction of the jury that the particular pretense proved was material in inducing the complaining witness to part with his property. It requires a somewhat critical and technical analysis of the particular instruction complained of to find anything therein in conflict with this well-settled law, and we are satisfied that in view of all that was said by the court to the jury in this immediate connection that no such effect as is claimed could reasonably have been attributed by the jury to the instruction. Reading the instructions on this subject as we have set them forth, it is plain enough that it was made perfectly clear to the jury that in order to convict upon the ground that any particular representation was falsely and fraudulently made, they must be satisfied beyond all reasonable doubt that the particular representation was material in inducing Mr. Muck to part with his money.

3. As to the claim of insufficiency of evidence: We have carefully considered the record and feel warranted in asserting that any jury of reasonable and fair men could not but be convinced by the evidence beyond all reasonable doubt of the guilt of the defendant of the offense charged, in so far as the representation that he was employed by "The Fatherland" publishing company and authorized to solicit loans and subscriptions on behalf thereof was concerned, which it clearly enough appears, was an effective representation inducing the parting with his money by Muck. This transaction was at a time prior to the entry of the United States into the war in which we are now engaged, and the "Fatherland" was supposed to be engaged in creating sentiment in this country in favor of Germany as against the allies. Such was the purpose of the requested assistance as outlined in the purported authorization exhibited by defendant to Muck, and the latter, as a strong sympathizer with the cause of Germany, was an easy victim to the scheme of defendant. That this representation had a controlling effect with him indisputably appears from his testimony. Much reliance is placed upon the fact that no direct evidence was introduced showing that the purported written authorization to one "Henry M. Meyers," bearing date April 2, 1915, which was exhibited to Mr. Muck on May 21st by this defendant, as his credentials, he claiming to be Meyers, was not a genuine instrument. Under the circumstances such evidence was not essential. The falsity of the representation as to authority was otherwise sufficiently shown to satisfy beyond all reasonable doubt any fair juror. Admittedly the purported telegram of May 24, 1915, from "The Fatherland" to "Meyers and Schmidt, Special Representative 'Fatherland Magazine,' " exhibited by defendant as Meyers to Muck on May 25th, implying authority in every line, and on the strength of which the last two hundred dollars of the three hundred dollars was obtained from Muck on that day, was an absolute forgery concocted by defendant. This particular transaction, the obtaining of the two hundred dollars on May 25th, was the one on which the district attorney elected to rely. This, together with other facts and circumstances disclosed by the evidence, amply showed the falsity of the representation as to authority. There is no force in the claim that the three hundred dollars was not obtained by defendant. The evidence sufficiently shows that the checks on a Boston bank given by Muck to defendant, after being cashed by defendant at the Fairmont Hotel office, were forwarded in due course of business to the drawee bank and never repudiated. In fact, we are satisfied, as already stated, that every essential element of the offense is clearly and absolutely shown by the evidence, and that, in view of the record, there can be no doubt of the guilt of the defendant.

4. It is urged that it was not affirmatively shown that the money obtained by defendant was not in fact subsequently paid by him to "The Fatherland." Without this proof it is urged there is no proof of injury to Muck. The crime charged against this defendant was complete upon his obtaining the money from Muck by false and fraudulent representations, and it was not necessary to show what defendant did with it. (SeePeople v. Bryant, 119 Cal. 597, [51 P. 960].)

5. It cannot be held to have been error warranting reversal for the court to refuse to give the requested instruction as to the burden of proof being on the prosecution to prove beyond all reasonable doubt the alleged false representation that defendant was authorized to collect moneys for "The Fatherland." The jury could not have understood otherwise from all the instructions given than that such was the situation as to each and all of the material allegations of the information, and there was nothing in this case to make imperative the giving of such an instruction directed specially to one of such allegations.

We find no other point in the briefs of learned counsel that requires notice. We may properly say in conclusion that in our opinion the record shows no error substantially affecting defendant's rights, and that it undoubtedly shows his guilt of the offense charged. This case falls as clearly within the provisions of section 4 1/2, article VI, of the Constitution as any case that has ever been presented to us.

The judgment and order denying a new trial are affirmed.

Shaw, J., Sloss, J., and Lawlor, J., concurred.