Full opinion text
NOURSE, J. pro tem. Appellant having been convicted on both counts of an indictment charging him in count I with conspiracy to commit grand theft, attempted grand theft, and the filing of a false and fraudulent insurance claim in violation of section 556, Insurance Code; and in the second count with the violation of section 556 of the Insurance Code (the presentation of a false and fraudulent claim for the páyment of a loss under a contract of insurance and the preparation and making of a writing with intent to present the same in support of such claim) appeals from the judgment and an order denying his motion for a new trial. In the indictment Clifford Vanderwyst, also known as Weiss, and one Claude Wilson were named as coconspirators. At the opening of the trial, appellant’s motion that he and Wilson be tried separately, was granted and after the jury was impaneled the People dismissed the action as against Weiss pursuant to the provisions of section 1099 of the Penal Code. The indictment was not dismissed against Wilson until after appellant’s motion for a new trial was denied. The facts as shown by the evidence offered by the People are: About 7 p. m. on December 27, 1955, the police were called to appellant’s place of business as a result of an A.D.T. alarm. After appellant had related the details of a robbery Captain Huff of the Beverly Hills Police Department asked the appellant: “Al, besides the furs, was there anything else taken, either your money or Stan’s money, or some of the company’s money?” And the appellant replied: “No, nothing else. They seemed to know exactly where to go and what to do.” On the 28th of December, and prior to an inventory being taken of the furs in the fur vault, the appellant reiterated the fact that nothing but furs had been taken. Appellant was insured against theft in three companies, the total amount of insurance being the sum of $350,000. A Mr. Gaebel was an insurance adjustor representing the three insurers. Following the alleged robbery there were prepared under the appellant’s direction, two lists of the furs alleged to have been missing. These did not purport to be accurate but were subject to correction; they were furnished to the Beverly Hills Police Department. In the first week of February, 1956, the appellant stated to Gaebel that he had finally completed a list of the furs stolen in the robbery. The appellant offered this list to Gaebel. Gaebel asked that it be mailed to him together with a number of copies. A few days later Gaebel received by messenger, 10 copies of this list. This list (People’s Exhibit No. 10) contained a description of in excess of 280 fur garments with a statement after each, of its value. It was not signed. On February 8th, officers of the Beverly Hills Police Department stated to appellant that they had been advised that Gaebel had the final list and asked appellant if that was the “whole works” and stated to him that inasmuch as it did not have the manufacturer’s numbers of the garments on it, it was of no use to the police. The appellant stated that the list, Exhibit Number 10 was the final list for the insurance company and was not for the police department, and if they wanted a copy of it they could get it from one of the insurance companies. About February 10th, Weiss surrendered himself to the Beverly Hills Police. Prior to 9 a. m. on February 14th, an officer of the Beverly Hills Police Department picked up the appellant and an employee of appellant’s by the name of Somper, at appellant’s place of business in Beverly Hills, telling them that they had under arrest a man they were informed had “pulled your robbery” and that they would like to have the appellant look at him and see if he could be the man. On arrival at the police station, appellant and Somper were separated and Somper was placed under arrest. The appellant was taken into a corridor, at the end of which was a cell in which Weiss was seated. The officer accompanying appellant, asked appellant if he could identify Weiss. Appellant answered that Weiss was of the general build and description but he was not positive. By prearranged plan, the officer then left the area, leaving appellant and Weiss alone. They were, however, in the view of another officer who was peering through an aperture in the wall. As soon as appellant and Weiss were alone, Weiss motioned the appellant to approach him. Appellant made no verbal reply but made a motion, placing the forefinger of his right hand vertically against his lips and then held his right arm against his body and moved it away from his body, making this motion several times. Appellant then left the corridor and rejoined the officer who had accompanied him (Lt. Borders). At this time he was placed under arrest and was immediately taken to the office of the chief of police where there were present, in addition to appellant, Weiss, Chief of Police Anderson, Lieutenant Borders and Captain Huff Appellant was again asked if he was positive he had not seen Weiss and appellant replied: “I told you upstairs I never seen him. ... It looks like the man. They are general in build but he is not the man.” Weiss was then asked if he had seen appellant before. He replied that he had at appellant’s fur store on the night of the alleged robbery when he talked to appellant in his office. In response to questions by Lieutenant Borders, Weiss in the presence of appellant, stated that he had met one Woody Wilson in the first part of November through a person known as Billy Layton; Layton had told him that he had a friend who was looking for someone to pull a phoney robbery; Wilson told him that he had a furrier friend who wanted to pull a phoney insurance bit, that it was a walk-in walk-out proposition where no one would get hurt; on November 30th he (Weiss) and Wilson had, pursuant to a prearranged plan made by Layton, gone to appellant’s fur store with the understanding that there would be but one employee present, who would be expecting to receive some packages; they carried with them two suit boxes and they were admitted to the store by a colored employee; it was Weiss’s job to hold this colored employee while Wilson went into the vault to move the furs from one part to another; they were not successful because when they arrived at the store a colored woman was also there, who started to scream and the colored man ran for the alarm button, whereupon Wilson and Weiss fled; Wilson had contacted him after Christmas, stated that the date would be December 27th and that the colored man had been sent out of town; Wilson told him he should go to appellant’s store at 10 minutes to 6 where he would be met by appellant in the front of the store and that appellant would carry the ball from there on; he was instructed to represent himself as an insurance agent and to talk about insurance policies when he went into the store; he did go to appellant’s store at 10 minutes to 6 p. m. and pretended to identify himself and appellant took him into his office; there he and appellant talked about fur auctions and appellant left the office and came back with a large mink coat stating that “They can’t close the vault until I get this back;” appellant again left the office and came back and whispered: “The office help is leaving;” thereafter a woman stuck her head in the door and stated that she was leaving for the day; he pointed to his Avatch and remarked that it was 6:25 and said: “It’s too late to take it now;” appellant replied: “No, I had the A.D.T. set up from 6:30 to 7:00 o’clock;” immediately thereafter, appellant called to a man by the name of Stan and asked if everybody had gone; Stan answered: “Yes;” appellant said to Weiss: “Get ready;” he, Weiss, then removed from the briefcase that he carried, some gloves and a toy pistol; appellant then told Stan to come in and when Stan came to the door of the office, appellant said:1 ‘ Stan this is a hold-up. We are insured. Don’t start anything;” thereafter he directed Teitelbaum to tape Stan’s arms behind him and appellant did; they marched Stan to a closet where he was left on the floor; they then went into a corridor on the south side of the building and appellant directed him to go back and close the door to the closet where they had left Stan; after doing this, he proceeded to the fur vault where appellant was arranging furs “vacating racks and moving them to another position;” he asked appellant if he could help but was told to go and look out the back window; he did and shortly thereafter appellant came to where he was standing and took him to the rear door and opened it, told him to go out that way when he left; they then proceeded to a closet and that appellant gave him a secretary containing some money; he asked appellant how much it contained and he said “$2,500.00” in $100 bills; appellant also gave him a watch and told him to put it in his pocket; he then took appellant to a closet on the south side of the building and taped him and then left the premises by the rear door. Borders then said to appellant: “Al, that’s the story. Is it true or not?” Appellant answered: “Yes, it was a stupid thing.” Borders then asked appellant if he would like to tell his side of the story and he said: “No, I will wait until my attorney gets here. ’ ’ Appellant was not advised that he was entitled to a lawyer or that he had a right not to be present when Weiss was questioned, or that anything he said might be used against him. The People did not offer any direct testimony that no promise of immunity was made to appellant prior to the occurrence in the office of the chief and that no threats had been made against him or any force or violence used upon him, but the evidence did disclose, without contradiction by appellant, each act and occurrence which took place between the time the appellant was picked up at his store and the interrogation of Weiss in appellant’s presence in the office of the chief. At the trial, the accomplice Weiss testified that at 5:50 p. m. on December 27th, 1955, he entered the appellant’s fur shop carrying a tan briefcase; he was dressed in a blue shadow-striped suit, and wore horn rimmed spectacles and a gray hat; the brim of the hat was turned down in front and he kept his head down so that his face could not he seen so well; when he entered the store there were some girls there and the appellant; he was stopped by one of the girls and he asked to see Mr. Albert Teitelbaum; he showed them a secretary and said he was from an insurance company; the appellant jumped up and came over to him and he gave appellant a name which he could not remember; he and appellant went into appellant’s office and sat there until 6:25 or 6:30 p. m. During the time they were there, they discussed fur auctions and appellant talked in an average voice; while he and appellant were sitting in the office, appellant left the room and came back with a full-length black mink coat which he showed him and stated that they would have to leave the vault open; he asked the appellant how long he should stay there; the appellant answered that the A.D.T. would not come on until 7 o’clock that night; he took gloves and a toy pistol out of his briefcase, put on the gloves and held the pistol pointed at the appellant; at that time all of the employees except A1 Stan had left the premises; appellant called Stan into the office. When Stan came in, he (Weiss) had the pistol pointed at Teitelbaum and told Stan if he did not follow Mr. Teitelbaum’s instructions that they would both get hurt; Teitelbaum taped up Stan and they walked him into a little cubby hole on the north side of the building and made him lie down; he and appellant then walked back to the office and toward the fur vault and appellant told him to go back and close the door on A1 Stan, which he did; he then went over to the fur vault and stepped inside and asked appellant if he wanted him to help to rearrange the furs; that appellant replied that he did not, and so he walked back to near the office; when he went into the vault, appellant was rearranging the furs; while waiting for appellant to come out of the fur vault, he looked out of the back window into the alley and saw somebody walking from the parking lot toward the back end of the store; this person turned down the alley and out of sight, but the same party came back and went into the parking lot and got into a ear and pulled out; appellant came back from the fur vault and gave him a brown secretary with $2,500 in it and a wrist watch. This took place in the back end of the store; the appellant then said that he, Weiss, was to tie him up and they went into an alcove on the south side of the store where there was a big rack and appellant sat down on the floor and straddled his legs around the steel bar of the rack; he taped appellant’s feet around the bar and appellant then put his hands around the bar and he, Weiss, taped his hands; he asked appellant how he was going to get loose and he said he would get loose when the A.D.T. came when no buzzer rang; he then went out of the back door carrying the briefcase which contained the remainder of the adhesive tape and the toy pistol; he threw his gloves in the trash can at the edge of the building; he took nothing with him from this store that he had not brought in except the watch and the wallet with the money in it; at the time appellant handed him the $2,500 and the wrist watch, he asked appellant if all the money was there and appellant answered: “See Woody;” he knew a person who had the nickname of “Woody” and that that person was Claude “Woody” Wilson; he threw the wrist watch that the appellant gave him, away at about Olympic and La Cienega, someplace in that district; that that was about 6 :45 p. m.; after leaving the fur shop he met Woody and gave him $1,000 to give to William Layton. Weiss further testified that he voluntarily surrendered himself to the Beverly Hills Police station and was placed in a cell there; on the third or fourth day after he surrendered he saw the appellant at the station; at that time he was in a cell; there was a hallway or corridor leading to this cell; when he first saw appellant, Lieutenant Borders was with him; the lieutenant asked appellant if he could identify the witness; that appellant said that the witness was of the general build and description but he was not positive; Lieutenant Borders walked out of the area and that he, the witness, motioned the appellant to come over to his cell; after he had made this motion, the appellant placed his fourth finger of the right hand across his lips; appellant also twice made the motion with his hand commencing near his person and then extending it away from his person ; after this occurrence he was taken to Chief Anderson’s office. On cross-examination the witness admitted having been convicted of a number of felonies. The witness Walge testified: that on December 27, 1955, he was employed as a chauffeur by Mario Lanza and that on the early evening of that day, he drove Lanza into the alley in the rear of appellant’s fur store. It was then between 6 :30 and 7 o’clock, and dark. He parked his car in the lot to the rear of appellant’s store and that there were two other cars there, a station wagon and a white Oldsmobile. These he knew to be the property of appellant. He saw no other vehicles; after parking he got out of the car and knocked on the rear door of Teitelbaum's store. He knocked several times and that Lanza got out and they both knocked. There were lights inside the store but there was no response to their knocking; Lanza pounded upon the metal rain cover of the door with a palm frond; the witness then walked around to the front of the store and although the lights were on, he could not see anyone in the store; he knocked upon the window; he then returned to the parking lot and drove the car with Mr. Lanza and one Esther Collins, around to the front of the store; he then got out of the car and walked to the front of the store and knocked on the window but there still was no response; he returned to the car and while waiting in the car, he was facing the front of the store and saw several faces in a three-way mirror; the ear was parked diagonally, facing the front of the store; on seeing these faces, he got out of the ear and walked back to the window and knocked again and at that time appellant and A1 Stan were walking toward him. They came within 10 feet of where he was standing outside of the window; appellant was in the lead as he and Stan came down a narrow passage and that as appellant came toward him he made “this motion like this, which I assume was, Get out of here, or—Go away.” (This gesture was described by the court as follows: “the witness placed both palms shoulder height near his body and moved them away from his body two or three times;”) that after this happened Lanza got out of the car and Stan opened the door and admitted Lanza and locked it again. The witness returned to the car and sat down and shortly after, Stan came back and opened the door and admitted Lanza and Collins. The People further proved that after the return of the indictment here, the appellant made a claim against an insurance company other than one of those that covered the furs in his store, for the loss in the alleged robbery of a wrist watch of a claimed value of $500. On behalf of the defense, A1 Stan testified that he is the appellant’s uncle, having been employed by the appellant for many years; a little after 6 o’clock on December 27th he was called into appellant’s office and was met by a man with a .45 automatic; he knew it was a .45 automatic because he had had experience with them while in the police reserve; the man with the gun told him to put his hands behind his back and told appellant to bind them with adhesive tape; the tape broke a couple of times and when it'would the man with the gun poked appellant with it; he then told him to walk forward and the appellant to follow him; they took him into a closet where the man with the gun told him to lie down and then told appellant to bind his legs with adhesive tape, which appellant did; he was not bound to anything; he was unable to state how long he was in the closet but that he did get into a sitting position and freed himself from the tape; while in the closet he heard nothing going on outside until he heard a pounding upon the back door; he then opened the closet door and found the appellant standing on the other side of the door; he was positive Weiss was not the man with the gun; the man with the gun was about as tall as Weiss but a little heavier, probably 15 pounds heavier; the man with the gun looked like Orson Welles did 20 years ago. He further testified that the man with the gun was wearing horn rimmed glasses. Eleanor Eldridge testified that she had been employed by the appellant for eight and a half years; between 5:30 and 6 o’clock on the evening of December 27th, 1955, she was sitting on the sofa in the appellant’s place of business next to appellant, and that there was also present another employee named Treitler and a customer named Hebard; a few minutes before 6 a man came in the front door of the store; she could not remember whether or not he had on a hat. Her recollection was that he wore a dark suit, she thought it was brown; the man said he wanted to discuss insurance with Mr. Teitelbaum and Mr. Teitelbaum invited him into his office; she left the premises about 6 :15 by the rear door; her car was parked in the parking lot; she backed out and it was very dark; as she backed out she saw a truck which was parked on the wrong side of the alley; it was a van type truck, parked without lights; she related seeing this truck on being questioned by the police. She further testified that she was in the fur vault many times on December 27th, the last time about 5:30 on that day; at that time none of the racks was empty; she next entered the fur vault in the early afternoon of December 28th and at that time there were several empty racks; about half the racks were empty; that it was customary to keep the furs about two to three inches apart on the racks. She testified that Weiss was not the man whom she saw enter the store at about 6 o’clock pn the 27th; the first time she ever saw Weiss was in the Beverly Hills police station on the 14th of February; she went there with Police Officer Cork and Mrs. Brodkin; she and Mrs. Brodkin were taken to a room where Weiss was sitting; Weiss was then handcuffed in front and was asked by the officer to pull his hat down; Weiss was then wearing a blue pin-striped suit; the officer then asked Weiss to identify the women but he was unable to do so except on direct questioning as to their identity. The witness Brodkin testified that she was employed by appellant as a bookkeeper; that sometime after 6 on the evening of December 27, 1955, she left her place of employment and at that time saw a man sitting with Mr. Teitelbaum in his office. She did not get a good look at him, only the back of his head. She said she was taken to the station on the 14th of February by Officer Cork. She there saw Weiss who had his hat on, and was asked to pull his hat down in front, which he did; but neither she nor Mrs. Eldridge was asked to identify Weiss; it was Officer Cork and not Lieutenant Borders who took her in to see Weiss. A number of other witnesses testified that on the 27th day of December 1955, there were no empty racks, but on the 28th there were many empty racks; their estimation as to the number of furs missing being from 50 per cent to 90 per cent. The appellant also introduced the testimony of accountants, whose testimony, based upon the records of the appellant, showed that a large number of furs which had been purchased by, or consigned to appellant prior to December 27th, were unaccounted for and missing on December 28th. The appellant took the stand on his own behalf but was not examined as to any matters other than the occurrences in the office of the chief of police on February 14th. He testified that at the beginning of the conversation in which Weiss related his story under the questioning of Lieutenant Borders, he interrupted with the statement that Weiss was a “damned liar” and interrupted them on several other occasions during the course of Vanderwyst’s interrogation and was told by the chief of police to keep quiet. That on one occasion he stated Weiss’ story was “a lot of hokum.” He denied that at the end of the interrogation of Weiss, Borders said to him: “Al, that’s the story. What about it?” and denied that he said “Yes, it was a stupid thing.” Appellant asserts that the grand jury which returned the indictment against him was not legally constituted and that therefore the indictment was void, and the superior court was without jurisdiction to try him under it. The grand jury which returned the indictment here was selected through a procedure provided by rule 16 of Buies of Superior Court of the County of Los Angeles. (See McKinney, New California Digest, vol. 1A, pp. 175-176.) Appellant’s contention that the jury was illegally constituted, is premised upon the invalidity of this rule as being in violation of the provisions of the Code of Civil Procedure as to the qualifications of grand jurors and as to the mode of their selection. Appellant does not contend that any of the grand jurors was an unqualified person, nor does he assert that there was any exclusion from the panel from which the grand jury was selected of persons of his race, religion, area of residence, political persuasion or any other condition which conceivably would be of detriment to him. In substance, rule 16 provides as follows: The grand jury shall be drawn and impaneled each calendar year in the Master Calendar Department of the Criminal Division of the court. On or before the first Monday in November of each year, each judge shall place in the hands of the presiding judge as nominees for the grand jury for the ensuing year, the names of two persons whose age, residence and occupation shall be stated and who are personally known to the judge submitting such names, and who have no affiliations known to the nominating judge which would preclude them from serving with complete impartiality if chosen, and who are legally qualified to act as grand jurors. The presiding judge shall cause a copy of the entire list of nominees to be placed in the hands of each judge of the court and copies furnished to the press, and shall cause the list to be filed with the secretary of the court and open to public inspection. That the presiding judge shall appoint a “committee on grand jurors” to whom objection to any nominee may be eommunieated by any judge or other person. The names of the members of this committee shall be published with the list of nominees. Each judge shall make an investigation of the prospective grand jurors and may communicate to the committee on grand jurors his objections to any nominee. Any judge nominating a person as a prospective grand juror may withdraw the name of his nominee. On or before December 31st, the committee on grand jurors shall present the presiding judge with a written report concerning each nominee. It shall set forth therein all objections received from any judge to any nominee. Before the 10th of January the presiding judge shall call a meeting of the judges. At that meeting the report of the committee on grand jurors shall be presented to and considered by the judges, and those nominees who are approved by a majority of the judges shall constitute the grand jury list, and this list shall be filed with the county clerk and made a public record. Appellant attacks this rule upon the following grounds: (1) That the rule violates sections 204b and 204c of the Code of Civil Procedure in that it does not provide for the preparation of a list of qualified and competent persons by the jury commissioner and (2) that the rule violates the provisions of sections 198 and 199 of the Code of Civil Procedure in that it requires grand jurors nominated to be personally known to the nominating judge. (3) That the requirement of the rule that a person nominated by a judge shall be personally known to him, constitutes a systematic and illegal exclusion of a large segment of the people of the county as grand jurors. These contentions cannot be sustained. The power and the duty of the superior court as to the selection of grand jurors is set forth in section 204 of the Code of Civil Procedure. So far as pertinent here, that section reads: “In the month of January in each year it shall be the duty of the superior court in each of the counties of this State to make an order designating the estimated number of grand jurors . . .; and immediately after said order designating the estimated number of grand jurors shall be made, the court shall select and list the grand jurors required by said order to serve as grand jurors in said superior court during the ensuing year, . . . and said selections and listings shall be made of men and women suitable and competent to serve as jurors, as set forth and required in Sections 205 and 206 of this code, ...” “In counties and cities and counties having a population of 80,000 inhabitants or over, such selection shall be made by a majority of the judges of the superior court; ...” By section 204a, the majority of judges of a superior court in counties having a population of over 60,000 may appoint a jury commissioner “to assist the judges thereof in making selections of . . . grand jurors.” By section 204b it is made the duty of the jury commissioner “pursuant to written rules or instructions adopted by a majority of the judges of such court” to furnish the judges of the court a list of persons qualified to serve as grand jurors. Section 204d provides that pursuant to the rules and instructions adopted by a majority of judges of the court, the jury commissioner shall return to the judges a list of persons recommended by him for jury duty, but further provides that the judges shall not be bound to select any names from said list, but may, if in their judgment “the due administration of justice requires, make all or any selections from among the body of persons in the county . . . suitable and competent to serve as jurors regardless of the lists returned by the jury commissioner.” Sections 204a and 204b and 204d in no wise affect or limit the duty of judges of the superior court to select and list the persons from which grand jurors shall be drawn pursuant to the provisions of sections 209 and 211 of the Code of Civil Procedure. They do not require, but merely authorize the appointment of a jury commissioner. They do not require that a jury commissioner, if appointed, must take any part in the selection of the list of persons to serve as grand jurors, but merely authorize the judges of the court to request his assistance if they are so advised and to adopt rules to guide him in the performance of his duty if it be required of him. The Superior Court of Los Angeles County did appoint a jury commissioner but it did not require of him any assistance in the selection of the grand jury list, but chose to perform these duties without the assistance of the jury commissioner. Rule 16 constitutes merely the procedure adopted by a majority of the judges of the court to govern them in carrying out, in an orderly manner, the duties imposed on them by section 204, and the power to adopt such a rule cannot be doubted. The provisions of the rule that a judge shall only nominate a person personally known to him, for consideration by a majority of the judges, is not mandatory but must be construed as advisory only, as the judges could not by rule control the action of any individual judge upon a matter addressed to his discretion. But assuming that it is mandatory and that no judge could legally submit for consideration the name of a person not personally known to him, it still does not contravene any statutory provisions as to the selection of grand jurors, for the persons selected must not only be personally known to the judge, but must, by the provisions of the rule, be legally qualified to act as grand jurors and therefpre must be persons who meet the requirements of sections 198 and 199 and 205 of the Code of Civil Procedure. There is nothing in section 204 that requires that the prospective grand jurors be selected at random from the body of the county. Further, the list of nominees does not constitute the grand jury list. That list is only constituted when a majority of all of the judges have approved the names to be contained upon the list. Appellant places great reliance upon the case of Bruner v. Superior Court, 92 Cal. 239 [28 P. 341]. It has no application here. In that case the person who summoned the jury to act on a special venire from which the grand jurors were to be selected, had no power to act, the order appointing him elisor being void. Here there is no question of the power of the judges to act, but to the contrary, they were the only persons who could act. During the examination of the witness Gaebel it was developed that during the time the grand jury was in session and considering the evidence produced before it, as the result of which it returned the indictment here, one of the grand jurors, during a recess in the grand jury proceedings, requested certain information from the witness Gaebel; Gaebel procured a certain document, handed it to a secretary at the rooms where the grand jury was in session and she in turn handed it to the juror. It was stipulated that such a document is not one of those incorporated in the transcript of the grand jury proceedings which was furnished to the appellant. It was further stipulated, at the proceedings had upon the appellant’s motion under section 995 of the Penal Code, that more than 12 of the grand jurors voted for the return of the indictment. It is appellant’s contention that the failure to include the document furnished to the grand juror in the record of the grand jury proceedings deprived him of the right given him by section 995 of the Penal Code, to a full and complete transcript of all of the proceedings before the grand jury. There is no merit in this contention. There was no evidence that any of the grand jury, other than the one to whom it was furnished by the witness Gaebel, ever viewed the document, or that it was considered by the grand jury in returning its indictment. There was no proof that it was a part of the record. It is presumed that the law was obeyed and that all evidence received before the grand jury was incorporated in its record. (Code Civ. Proc., § 1963, subds. 15 and 33.) Assuming that all of the grand jurors examined the document outside of the formal proceedings and without it being introduced in evidence, still that fact would not affect the validity of the indictment or the jurisdiction of the court to proceed under it, for the evidence received before the grand jury and contained in the record of its proceedings was sufficient to uphold it. (McFarland v. Superior Court, 88 Cal.App.2d 153 at 158-159 [198 P.2d 318].) There was, however, no proof that any grand juror, other than the one to whom the document was handed, examined it, and as it was stipulated that more than 12 jurors voted to return the indictment, the perusal of the document by one could in no event void the indictment. There is no showing made and in fact no claim made by appellant, that failure to incorporate the document in question in the record of the proceedings of the grand jury, adversely affected him in preparing for trial. The document was not produced at the trial and the appellant was therefore not called upon to meet any probative force that it might have had. Appellant further asserts that count I of the indictment was insufficient to state an offense against the laws of the State of California in that it failed to set forth the name of the person upon whom the theft was conspired to be committed and the amount involved, or set forth the false and fraudulent claims filed or the amount alleged to have been claimed. He further asserts that count II of the indictment fails to state a public offense in that it failed to name the insurers or to set forth the claims made. Both counts of the indictment fully meet the requirements of section 950 of the Penal Code. If there was any uncertainty in either count or if the second count as claimed, charged two crimes without separately stating them, which it did not, any such deficiency was waived by the appellant by failing to demur to the indictment. (People v. Pierce, 14 Cal.2d 639 at 643-646 [96 P.2d 784]; People v. Yant, 26 Cal.App.2d 725 at 729-730 [80 P.2d 506] ; People v. Brac, 73 Cal.App.2d 629 at 734-735 [167 P.2d 535].) During the trial of this action which consumed nearly three weeks, conferences were held at the bench, out of the hearing of the jury on 26 occasions, and eight conferences were held between court and counsel in chambers. In addition, other off-record conferences were held at the bench. As no affidavits were filed on the motion for new trial that these concerned matters involved in the trial of the action, we assume they did not. Appellant, though in the courtroom, was not present at any of the conferences between court and counsel at the bench, nor was he present in chambers during the proceedings there. Appellant asserts that by reason of the fact that the conferences between counsel and the court, out of the presence of the jury, were not heard by the members of the public who attended the trial, he was denied a public trial as guaranteed by section 686 of the Penal Code and by article I, section 13 of the Constitution of this state. He further contends that proceedings had at the bench and in chambers, when he was not personally present were in violation of his right to appear and defend the action in person as guaranteed by section 1043 of the Penal Code and by the article of the Constitution of this state last mentioned. We find no merit whatsoever in the contention that the trial was not a public one. No' member of the public was barred from the courtroom or from the proceedings had during the time the jury was entitled to be present and to itself hear the proceedings. We have carefully scrutinized the transcript as to each of the occurrences of the 34 conferences which we have mentioned above and find that in each instance the matters as to which the conferences were had between court and counsel, were matters which could not have been properly heard in the presence of the jury. In each instance the subject matter of the conferences between court and counsel was a question or questions of law, and not matters advanced for consideration of the triers of fact. The trial of the action, so far as the term “public trial” is concerned, consists in the proceedings for the impanelment of the jury, the opening statements of counsel, the presentation of evidence, the arguments, the instructions to the jury and the return of the verdict, and from none of these proceedings was the public excluded. Thus appellant was not denied a public trial. Neither appellant nor counsel made any objection to the conferences at the bench or those in chambers and many of them were held at the request of appellant’s counsel. Appellant thus waived the right he now claims, to have the public present at those conferences. (People v. Tugwell, 32 Cal.App. 520 at 525-526 [163 P. 508].) Appellant’s contention that his absence from the conferences at the bench and in chambers deprived him of his right to be present at the trial and to defend, cannot be sustained. The absence of the appellant from the conferences held between court and counsel at the bench and in chambers did not, under the circumstances here, deprive him of any rights given him by the provisions of article I, section 13 of the Constitution “to appear and defend, in person and with counsel,” or his right given him by section 1043 of the Penal Code to be personally present at the trial. In none of the instances of conferences at the bench or in chambers, were any matters presented to the court as to which appellant could have been of any aid to his counsel. Bach of them concerned questions of law as to the admissibility of evidence and any knowledge appellant may have had of the facts which his counsel did not have, would have been of no aid to his counsel in the presentation of these questions of law. In our opinion the rights of an appellant under section 1043 of the Penal Code or under article I of section 13 of the Constitution are not violated unless he is prevented from being present during the presentation of matters before the triers of fact or such other times as his absence would thwart a fair and just hearing. In considering the appellant’s right to be present at a trial under the provision of the Fourteenth Amendment to the Constitution, Mr. Justice Cardozo in Snyder v. Massachusetts, 291 U.S. 97 [54 S.Ct. 330, 333, 78 L.Ed. 674, 90 A.L.R. 575], said in part: “Nowhere in the decisions of this court is there a dictum, and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow. ... So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” In United States v. Johnson, 129 P.2d 954 at 959 [144 A.L.R. 182], the court said: “The test, therefore, the jury, the triers of fact being absent from the courtroom, must be whether or not the appellant was damaged by not being present. . . . The question which was argued was purely one of law . . . the trial court correctly resolved it. . . . As we have previously indicated, the right of a defendant to be present when the triers of fact are absent is not an absolute right, but one qualified by a condition that nothing occurs when he is not present which could put him in jeopardy. Only thus would his presence bear a relation ‘reasonably substantial, to his opportunity to defend. ’ ” There is no reason why any different interpretation should be placed upon the statutes or provisions of our Constitution above mentioned than is placed by the Supreme Court of the United States upon the Fourteenth Amendment. Appellant has failed to point out any occurrences had out of his presence which in any way affected him adversely and our own study of the record convinces us that his rights were not substantially impaired. As a matter of fact the appellant was not excluded from conferences held at the bench or in chambers. No order was made excluding him. He was, at the time of the trial, on bail and not under restraint and was free to, of his own volition, attend any of such conferences. He made no attempt so to do. His absence was of his own volition and not by reason of any action of the court and by failing to personally assert, or to assert through his counsel, his desire to be present, he waived his right to be present, (People v. Tugwell, 32 Cal.App. 520, 525, 526 [163 P. 508] ; People v. Searle, 33 Cal.App. 228 at 232 [164 P. 819] ; People v. White, 20 Cal.App. 156 [128 P. 417] ; People v. Rogers, 150 Cal.App.2d 403 at 413, 415 [309 P.2d 949]; Snyder v. Massachusetts, 291 U.S. 97 [54 S.Ct. 330, 333, 78 L.Ed. 674 at 678, 90 A.L.R. 575] ; Deschenes v. United States, 224 F.2d 688.) Appellant asserts that the trial court erred in denying his motions to strike the testimony of the witness Borders, wherein that witness testified as to the statements made on the 14th day of February 1956, in the office of the chief of police, by Weiss in the presence of the appellant and wherein he related that appellant had, at the end of the interrogation of Weiss by Borders, stated in answer to the witness Border’s question as to whether the statements of Weiss were true: “Yes, it was a stupid thing.” They first assert that this adoptive confession was received without any foundation being laid for it, in that, so they assert, there was no evidence offered that the statement was free and voluntary. It is seemingly appellant’s position that because no witness was asked as to whether any force or violence was used, or promise of immunity or reward made, that a proper foundation was not laid for the receipt into evidence of the alleged confession. Appellant, however, has not cited any authority to uphold this contention nor have we, in our research been able to discover any cases which require such direct testimony in order that a proper foundation may be laid for the receipt of a confession, although we recognize that it is the common and probably the better practice to produce such testimony before offering the confession. We are satisfied that the evidence was sufficient to make it a question of fact for determination, first by the trial court and then by the jury, as to whether or not the confession was voluntarily given and to uphold the finding that it was voluntary. The evidence discloses everything that occurred from the time the appellant was picked up at his place of business on the morning of the 14th of February, 1956, until the time appellant admitted the truth of Weiss’ statements, and nowhere in the evidence is there any indication of any threats, force or violence or promises of immunity or reward. The appellant, when he took the stand did not assert that any violence had been used upon him or threats made to him or promises of immunity or reward given him. Under the evidence here, the question of whether the confession was voluntary was one to be determined by the trial court and the jury. (People v. Chan Chaun, 41 Cal.App.2d 586, 590-591 [107 P.2d 455] ; People v. Burwell, 44 Cal.2d 16 at 30-32 [279 P.2d 744].) The fact that the appellant was under arrest and that his confession was made in response to questions asked by the officers while he was under restraint, does not, in and of itself, prove that his confession was not free and voluntary, but was merely a circumstance to be taken into consideration by the trial court and jury in determining that question. (People v. Rogers, 22 Cal.2d 787, 805 [141 P.2d 722]; People v. Bigelow, 104 Cal.App.2d 380 at 390 [231 P.2d 881] ; People v. Chan Chaun, supra; Rogers v. Superior Court, 46 Cal.2d 3, 9-11 [291 P.2d 929].) Appellant asserts that the admission into evidence of the confession deprived him of his rights under the Fourteenth Amendment to the Constitution of the United States. He bases this contention upon the fact that the confession was made after his arrest and before he had been taken before a committing magistrate, there being opportunity so to do, and without his being advised of his right to counsel, and that his statements might be used against him. There can be no doubt that where a confession is coerced either through threats, force, violence or psychological coercion through constant and prolonged questioning, the defendant is deprived of his constitutional rights, if the confession is received in evidence, but the fact that the confession was received while the defendant was under arrest and prior to the time he had been taken before the committing magistrate, does not, in and of itself, establish coercion. (Lisenba v. California, 314 U.S. 219 [62 S.Ct. 280, 86 L.Ed. 166 at 179-180]; Rogers v. Superior Court, 46 Cal.2d 3 at 9-11 [291 P.2d 929]; People v. Bashor, 48 Cal.2d 763 at 765 [312 P.2d 255].) There is nothing in the evidence here to show that appellant’s confession was coerced, and as a matter of fact, appellant did not so assert, but to the contrary, denied the confession. We do not have here any evidence of any threats against the appellant, any force or violence used upon him, any prolonged questioning of him. We do not have a defendant weakened by prolonged confinement or constant questioning or one of impaired mentality, but on the contrary, a man of high intelligence, experienced in the affairs of life, whose confession was made within 30 minutes after his arrest and without any questions being propounded to him, other than whether the statements made by another which established his guilt, were true. It cannot be said, as a matter of law, that his confession was coerced, and while, as we have said, the fact that he was under restraint at the time of the confession is a fact to be considered in determining whether it was voluntary, his confinement does not establish the fact that it was not. Appellant asserts, however, that the mere fact that his confession was obtained before he had been arraigned or advised of his constitutional rights, in and of itself makes the confession inadmissible irrespective of whether his constitutional rights were invaded. He bases this contention upon the rule laid down by the Supreme Court of the United States in McNabb v. United States, 318 U.S. 332 [63 S.Ct. 608, 87 L.Ed. 819]; Upshaw v. United States, 335 U.S. 410 [69 S.Ct. 170, 93 L.Ed. 100]; Mallory v. United States, 354 U.S. 449 [77 S.Ct. 1356, 1 L.Ed.2d 1479].) The rules laid down by these eases are applicable only in a federal court and they do not purport to establish any constitutional limitation upon the right of the state courts to receive voluntary confessions made during the time that a defendant may be illegally detained. The Supreme Court of this state has expressly refused to adopt the rule laid down by the United States Supreme Court as an exclusionary rule in this state. (See Rogers v. Superior Court, 46 Cal.2d 3 at 10 [291 P.2d 929]; People v. Bashor, 48 Cal.2d 763 at 765 [312 P.2d 255].) We hold, therefore, that the court did not err in denying the motion to strike the testimony of the witness Borders. His testimony that the appellant admitted the truth of the statements made by Weiss, was properly received as evidence of a confession of the crime of conspiracy charged by the first count of the indictment, and as an admission of the facts stated by Weiss insofar as they were pertinent to the proof of the crime charged in the second count of the indictment. Appellant asserts that he was compelled to be a witness against himself. He bases this assertion upon the fact that during cross-examination he was asked if the name “Claude Wilson, known as Woody Wilson’’ had been mentioned in his presence during the relation by Weiss in the chief’s office, to which the appellant over his objection answered: “I’m not sure.’’ The appellant on direct examination had testified that he was present and listened to Weiss’ recitation in the chief’s office; and that he had at several times interrupted to deny Weiss' statements and had denied that he was asked if Weiss’ statement was true or that he replied: “Yes, it was a stupid thing.’’ The question asked concerning Woody Wilson was proper cross-examination inasmuch as the witness Borders had testified that during the conference in the chief of police’s office that Weiss had related Wilson’s connection with the conspiracy. But in any event, appellant was not prejudiced by the question or his answer thereto, as the evidence offered by him showed that appellant had had business connections with Claude Wilson. It is asserted that the evidence fails to show that any claim was filed by appellant against the insurers under the policies of insurance issued by them, and that, therefore, there was no proof of the commission of the offense charged in either count of the indictment. This contention is based upon the claim that the itemized inventory delivered by appellant to Gaebel, the adjustor for all insurers, did not constitute a claim within the meaning of section 556 of the Insurance Code, and that in order for a claim to have been made it was necessary that a sworn proof of loss be filed. Section 556 of the Insurance Code reads in part as follows: “It is unlawful to: “ (a) Present or cause to be presented any false or fraudulent claim for the payment of a loss under a contract of insurance. “(b) Prepare, make, or subscribe any writing, with intent to present or use the same, or to allow it to be presented or used in support of any such claim.” The word “claim” is one of common meaning and is defined by Webster’s International Dictionary, Second Edition, unabridged, as follows: “To ask for, or seek to obtain, by . . . right, or supposed right; to demand as due.” It is to be assumed that the Legislature in using the word “claim” intended it to have its common meaning and intended to proscribe the presentment of any false demand under a policy of insurance irrespective of the form of that demand. Certainly it was not the intent of the Legislature to only proscribe the filing of a false written proof of loss for proofs of loss are made, not as a claim, but in support of a claim, and it is the making of the false proofs of loss which is in part the subject matter of paragraph (b) of section 556. The purpose of the two paragraphs of the section is apparent. A claim of loss under a policy of insurance might not be false, yet the proof of loss presented in support of the claim be false. For example: Under a policy of fire insurance, the risk insured against, a loss by fire, might have occurred and a claim for some loss and the amount thereof be true, but the proof of loss might assert the loss of property which was not in fact destroyed or damaged by the fire, or falsely state the quality, character or value of the property destroyed. The provisions of a policy of insurance requiring the insured to present sworn proofs of loss, are for the benefit of the insurer and may be waived. (Ins. Code, § 554; Hutchings v. Southwestern Automobile Ins. Co., 96 Cal.App. 318 [274 P. 79]; Ruffino v. Queen Ins. Co., 138 Cal.App. 528 [33 P.2d 26, 883].) It certainly would not be asserted that if an inventory, such as Exhibit 10, had been filed with an insurer and the amount of the loss paid without any written proof of loss being filed, the insured could not be charged with grand theft and a violation of section 556 of the Insurance Code, if no loss had in fact occurred. Yet that would be the logical result of holding that the jury could not here find that by the presentment to the insurer of Exhibit 10, the insured intended to make a claim of loss. That there was ample proof from which the jury might find that a false claim of loss was made is clear. The witness Weiss testified that there was no robbery or theft of furs from appellant’s premises on the night of December 27th. Appellant caused to be presented to the insurance companies, People’s Exhibit 10, which is an itemized list of more than 280 fur garments, with the value of each, and their total value set forth, and stated to the police that that list was the final list for the insurance company. It is evident that the jury might well find from this evidence that by presenting this itemized list, containing the value of each item of the property described, appellant intended it to be a claim for the payment of a loss under the policies, irrespective of the fact that in order to fix the liability of the insurers under the policies, it would be necessary for him to file a formal and sworn proof of loss in support of the claim. Appellant also complains that the court did not instruct the jury as to the meaning of the word “claim.” A sufficient answer to this claim of error is that the word “claim” is one of common meaning and that the appellant did not request any instruction defining that meaning. (People v. Allen, 138 Cal.App. 652 at 659 [33 P.2d 77]; Estate of Nutt, 181 Cal. 522 at 529 [185 P. 393]; Lawrence v. Pickwick Stages, N.D., 68 Cal.App. 494 at 501 [229 P. 885] ; People v. Whitson, 25 Cal.2d 593 [154 P.2d 867]; People v. Klor, 32 Cal.2d 658 at 662 [197 P.2d 705]. Appellant asserts that the evidence is insufficient to sustain the verdict of guilty on the first count. The basis of his claim as we understand his brief, is that the corpus delicti was not established, that therefore his confession was inadmissible, and that without the confession there was no corroboration of the testimony of the accomplice which was relied upon by the People to establish the fact that there was in fact no theft of appellant’s furs. The corpus delicti of count I of the. indictment was the conspiracy to commit any 'one of the three counts mentioned in the indictment: (a) grand theft, (b) attempted grand theft, and (c) filing of false and fraudulent insurance claims. Appellant asserts that there was no proof of any agreement to commit grand theft or of any agreement between appellant and any of the named conspirators, to file a claim for insurance. It is true that there was no direct evidence of an express agreement between appellant and any of the named conspirators, but direct evidence is not necessary for a conspiracy may be, and often must be established by circumstantial evidence and an express agreement need not be proved, but the conspiracy may be implied from the acts of the conspirators in carrying out a common purpose to an unlawful end. (People v. Daener, 96 Cal.App.2d 827, 831 [216 P.2d 511]; People v. Curtis, 106 Cal.App.2d 321, 327 [235 P.2d 51]; People v. Lawrence, 143 Cal. 148 [76 P. 893, 68 L.R.A. 193].) In the present case, the evidence produced by the People was sufficient to sustain a finding that a robbery was faked by appellant and Weiss on December 27th; that no furs or other property were stolen from appellant; that the appellant called the police through the A.D.T. alarm and notified the insurers of the alleged theft; that appellant thereafter filed a claim against these insurers for his alleged loss in the alleged robbery and that each of these acts was done pursuant to a plan to illegally obtain money from appellant’s insurers. The uncorroborated testimony of the accomplice Weiss, together with the filing of the false claim, were sufficient to establish the corpus delicti. (People v. Goldstein, 136 Cal.App.2d 778 at 789 [289 P.2d 581]; People v. Briley, 9 Cal.App.2d 84 at 86 [48 P.2d 734].) The corpus delicti being established, the confession was admissible in evidence and constituted sufficient corroboration of the accomplice’s testimony. (People v. Rokes, 18 Cal.App.2d 689 at 691 [64 P.2d 746] ; People v. Earl, 10 Cal.App.2d 163 at 165 [51 P.2d 147].) The testimony of the accomplice, the confession and the evidence as to the filing of the claim against the insurers established not only the conspiracy as charged in the first count of the indictment, but at least two of the overt acts charged by that count, and this evidence amply supports the verdict of guilt upon both counts. Appellant makes numerous assignments of error in relation to the rulings of the court upon the admissibility of evidence. We have examined all of these assignments of alleged errors and find only one that has substance. As a part of the People’s case it was proved that Exhibit Number 10 (the list of the furs hereinbefore described) had been delivered to Gaebel, the adjustor for the insurance companies, and that appellant stated that that was the final list for the insurance company, and had refused to give the police a copy of it. The People had also shown that this list was received by Gaebel in an envelope which was received into evidence and marked “exhibit no. 11.” The appellant called as a witness one of his employees, a Mr. Behar. This witness testified that he had received Exhibit Number 10; that when he received it, it was sealed and was addressed to C. A. Gaebel. When asked what he did with it he replied; “I was instructed to give it to Mr. Gaebel for the police to check.” The district attorney then moved to strike the answer as not responsive and as containing hearsay, whereupon counsel for the appellant offered to prove by the witness that Exhibit Number 11 was handed to the witness by the appellant who told the witness to deliver it to Mr. Gaebel, “that it was a list for the police and that Mr. Gaebel had asked for it and he was to give it to him as soon as possible.” The district attorney’s objection to this offer was sustained and the answer of the witness was stricken. While the motion to strike the answer was proper, as the answer was not responsive to the question asked, the court’s ruling on the offer of proof was clearly erroneous. The gist of the crime charged by the second count of the indictment was the filing of a false claim. It was the claim of the prosecution that Exhibit Number 10 constituted the false claim. It did not, however, contain any expressed demand for the payment of the loss and unless the appellant intended it as a demand or an assertion of a right to payment, there would be a failure of proof under count II of the indictment. His intent to make a demand might, as the People claim, be inferred from the filing of the claim and other evidence which we will later advert to. The appellant, however, was entitled to show a different intent and to offer proof of any statements made by him in connection with the delivery of the document which might tend to prove the absence of the intent to make a claim. Such statements were verbal acts within the exception to the rule against hearsay. (People v. Weatherford, 27 Cal.2d 401 at 421-422 [164 P.2d 753] ; People v. Chenault, 74 Cal.App.2d 487 [169 P.2d 29]; Wigmore VI, §§ 1725, 1732, 1772-1777, 1785.) In view of the record here, however, we are convinced that this error does not justify a reversal of the judgment. The evidence showed without conflict that appellant caused to be prepared and furnished directly to the police, two other lists of the furs lost in the alleged robbery (Exhibits Nos. 6a and 6b); that he had stated to the police that Exhibit Number 10, which did not c