People v. Schwarz (78 Cal. App. 561, 1926)

CRAIG, J.

The appellants, together with defendant Donlin, were tried upon an indictment charging them with having conspired to obtain money and property from divers persons by unlawful, false, and fraudulent pretenses and representations. Each of the appellants was convicted and presented a motion for new trial, which was denied, and they appeal from the respective judgments and orders accordingly entered by the trial court.

It appears that Schwarz, Donlin, and one Clark were officers of a corporation known as the Securities Corporation of Southern California (referred to herein for convenience as the Securities Company), which maintained its offices and principal place of business in the city of Los Angeles, and that they conducted a stock brokerage business for some time under the corporate name, but later operated under the name of Harry 0. Weist.

Stating the offense as alleged in the indictment, and as shown by the evidence, it appears that through the operation and agency of the Securities Company, and Weist, as brokers and dealers respectively in shares of corporate stock, salesmen were employed to solicit customers and interest them in the purchase and sale of shares of the capital stock of the Standard Oil Company of California, and of other well-recognized corporations. Schwarz agreed to finance the business and Weist agreed to obtain a stock broker’s license, and to invest $6,000 in the capital stock of the Securities Company; it was also understood and agreed that the profits of the business should be equally divided between Schwarz, AVeist, and Donlin. Weist procured a broker’s license, was elected vice-president of the Securities Company and entered into active promotion and operation of the business with Schwarz. All orders and confirmations were executed upon stationery bearing the headings “Harry C. Weist, Broker,” and “Harry C. Weist, Investment Banker, and Broker,” and funds received by Weist were turned into the accounts of the Securities Company, which in turn purchased shares of capital stock of Midland Trust and Savings Bank of St. Paul. Schwarz and Weist each had a desk in and occupied the same office of the suite. The former made purchases and the latter effected sales of various stocks by methods which will be more particularly described elsewhere in this opinion; Weist instructed salesmen, and both he and Schwarz signed checks, though Schwarz apparently assumed control of the business and attended to the hiring and discharging of employees of the company.

Appellants Frankfort and Goldner were stock salesmen in the employ of the company, the former having been hired by Schwarz and Weist, and the latter by Schwarz. Goldner received a salary of about $2,500 per year and commissions, and Frankfort was paid a salary of $2,400 to $2,500.

■ It appears that the major portion of stock sales to Los Angeles customers was initiated by means of a somewhat extensive and persistent telephone system utilized by Schwarz prior to the advent of AVeist in the enterprise, and by the salesmen thereafter employed and instructed by them. It was testified that appellants Frankfort and Goldner, respectively, telephoned from the offices of the Securities Company to people whose names were obtained from directories and advertising concerns, informing them that the Standard Oil Company of California had a large surplus of oil and money and that substantial dividends would soon be declared. The salesmen thus made acquaintances, secured appointments and ultimately met many people having funds to invest, whom they induced to purchase the Standard Oil stock at the current market price, usually payable in installments. Thereafter the same salesmen called the purchasers on the telephone and represented to them that their Standard Oil stock was “going down,” that there was an impending collapse, and that no dividend would be paid. It appears that while Frankfort was thus advocating sales, Goldner was sounding the alarm of a threatened “collapse” of the same stock, and vice versa, each using the telephones of the same suite of offices.

In the meantime Schwarz was purchasing stock of the Midland Trust and Savings Bank of St. Paul at $2.30 to $4.80 per share with the funds of the Securities Company. Frankfort and Goldner represented to purchasers of Standard Oil stock that the Midland stock was a valuable investment at $12.50 per share, and persuaded them to exchange their holdings for the latter at that price. It thus appears that the Standard Oil stock sold by the concern was repurchased by its own customers, the cheaper stock was given them therefor at a value of $12.50, and the Standard Oil stock was in turn again sold to new customers at market price, in the face of an “impending collapse” in value of the latter security.

Each of the appellants contends that he was compelled to furnish to' the commissioner of corporations self-incriminating evidence during the commissioner’s investigation of their affairs, prior to the trial, and that he was therefore immune from prosecution under the indictment in this case. It is asserted that boobs, records, and papers of Schwarz, Weist, and the Securities Company were seized by the commissioner, and that Frankfort and Goldner were compelled to testify at such investigation.

It appears that previous to the institution of the criminal proceedings here under consideration one Floyd L. Eddy filed with the corporation commissioner a complaint against appellant Harry C. Weist, as a broker. Upon the hearing conducted by the commissioner in Eddy v. Weist, appellant Weist testified voluntarily, but Schwarz did not testify. One Bradley, an accountant, whom Schwarz had caused to audit Weist’s accounts, testified from data which he gathered from the books and records of the brokerage business-involved in this prosecution, and stated that all the information, records, and assistance afforded him during his investigation were furnished voluntarily by Schwarz and by the commissioner of corporations. There is no evidence or offered evidence before us tending to indicate that the commissioner seized, or compelled any of the parties to furnish, the books, records, or documents as insisted by appellants. Hence the claim that appellants Schwarz and Weist were compelled to give evidence before the commissioner which tended to incriminate them has no foundation. Appellant Schwarz also sought to interpose a plea in abatement upon the same grounds, and assigns as error an adverse ruling of the trial court as to such plea. We know of no authority for pleas in abatement in criminal cases. Section 1016 of the Penal Code specifies the pleas which are recognized in this state; but in any event, as we have said, these appellants were not compelled to incriminate themselves before the commissioner. This point, therefore; requires no further attention.

Motions to quash the indictment in the instant case were presented, at which time the reporter’s transcript of the proceedings in Eddy v. Weist was introduced, and is brought up with the record upon these appeals. It appears therefrom that appellants Frankfort and Goldner were subpoenaed, called as witnesses and examined at length by the commissioner. It is conceded by respondent that they appeared and testified pursuant to the commissioner’s subpoena. Their testimony was given over strenuous objections, and was followed by motions to strike it out, which were denied. Frankfort and Goldner testified that at the special instance and request of Weist and Schwarz they obtained customers by telephone, sold them stock which they later persuaded them to exchange for cheaper shares, in the manner heretofore related. Frankfort testified that he never had any independent knowledge of the worth of the stocks which he sold, but that Standard Oil was always sold first, and that the same buyers were thereafter induced to exchange the Standard stock for Midland bank stock, though he knew that the latter was not a better investment; that he never sold the Midland stock for less than $12.50 during the time that the record shows it to have fluctuated between $2.30 and $4.80 per share. Goldner testified that he was “back room manager,” in charge of a crew of salesmen; that at the same time he advocated exchanges of Standard oil stock by customers for Midland shares, upon the representation that the former was going to “break,” he was selling the same Standard Oil stock to others at the full price.

The evidence furnished by Frankfort and Goldner embraced much of the data upon which the indictment and judgment in the instant case were founded. It therefore becomes obvious that they appeared before the corporation commissioner in response to his subpoena, and testified under oath as to the matters upon which they were subsequently prosecuted and convicted. The respondent does not attempt to dispute this fact, but contends that they were not immune from prosecution for the reason that the commissioner has no power or authority to compel a person to give evidence which may tend to incriminate him. Counsel for respondent rely upon chapter 2, title III, part IV, of the Code of Civil Procedure, which provides the method for production of evidence before a court or upon the taking of a deposition. It is argued therefrom that for any disobedience of a subpoena, or refusal to testify, the corporation commissioner could only “cite” the witness for contempt.

We think this contention is untenable. The commissioner is by the terms of the Corporate Securities Act (Stats. 1917, p. 673) clothed with authority to issue subpoenas requiring witnesses to appear before him to testify and furnish documentary evidence. Section 17 of said act provides that no person shall be excused from so testifying or furnishing evidence upon the ground that it may incriminate him, and section 14 further provides that every person who “wilfully violates, or fails, omits, or neglects to obey, observe, or comply with any order, permit, decision, demand, or requirement, or any part or provision thereof, of the commissioner under the provisions of this act, is guilty of a public offense and shall be punished by imprisonment in the state prison not exceeding five years, or in a county jail net exceeding two years, or by a fine not exceeding five thoi sand dollars, or by both such fine and imprisonment.” Ministerial and other nonjudicial officers have no power to punish for contempt unless specially so authorized by law. (People v. Latimer, 160 Cal. 716 [117 Pac. 1051].) But penalties are provided by this statute for violations oE the commissioner’s orders.

The commissioner’s subpoenas by which appellants were summoned before him were addressed to the witnesses and recited, in part: “You and each of you are hereby req tired to be and attend as a witness before E. M. Daugherty, Commissioner of Corporations of the State of California, . . . on Monday, the 28th day of July, 1924, at the hour of 10 o’clock A. M., in the above-entitled matter. Por failure to so attend, you will be deemed guilty of contempt and liable to the penalties provided by the act of the Legislature, ’ ’ etc. The act is mandatory; a "witness may not refuse to appear or to testify upon the ground 'tha; his evidence might incriminate him, and it is made a public offense, punishable by fine or by imprisonment for one day to two or five years, in a county jail or penitentiary, as the case may be, for any person to violate the specific provisions of the act, cr “in any other respect” to fail or refuse to obey any lawful order, demand, or requirement of the commissioner of corporations. But section 17 oE the act further provides: “No person shall be prosecuted, punished, or subjected to any penalty or forfeiture for other than the Penal Code.” (Italics in original.) Nevertheless, it should be borne in mind that this proceeding was not founded upon an alleged violation of, or conspiracy to violate, any of the provisions of the Corporate Securities Act. The indictment was based upon subdivision 4 of section 182, denouncing it as an offense for two or more persons to conspire “to obtain money or property by false pretenses.’’

Another theory upon which the validity of the indictment is challenged is that it charged the defendants, as brokers and dealers, in the buying and selling of stocks, with having misrepresented the value of the stock of the Midland Company, and that said company was then in the process of consolidation. It is argued therefrom that since the purpose of the Corporate Securities Act was, as entitled, “ ... to provide penalties for the violation thereof,’’ and since section 13 of that act prescribes penalties for falsely stating the values of corporate stock, it necessarily was all-comprehensive, and that infractions of its provisions were not cognizable by the provisions of the Penal Code. We are also reminded that this statute embraces the clause, “All acts and parts of acts inconsistent with the provisions of this act are hereby repealed.’’ This argument is not only founded, as we have seen, upon an erroneous premise as to the crime charged, but it is conceded that the Corporate Securities Act is a continuation of the Investment Companies Act (Stats. 1913, p. 715), which in itself is a cogent reason for the existence of the repealing clause' in the later legislation. Appellants do not attempt to assert that section 182 of the Penal Code was thereby repealed, nor do they indicate any provision of the act in question with which it could be said that said section is inconsistent. The fact that appellants were not charged primarily with having misrepresented, but with having conspired to obtain money by false and fraudulent representations and pretenses as a means of furthering the object of such conspiracy, is entirely ignored by their argument, but it constitutes a complete answer to their contention.

On behalf of the defendant Schwarz it is insisted that the People failed to make any showing tending to prove that he knew of the falsity of statements which he may have authorized the salesmen to make. In addition to what has already been said of the facts in this case, there is an abundance of circumstantial evidence, which alone would suffice to sustain the verdict and the judgment, if believed by the jury. (People v. Flynn, 73 Cal. 511 [15 Pac. 102].) It also appears without contradiction that Schwarz was the instigator and chief executive of the Securities Company’s business, and that he enlisted the services of Weist, who thereafter collaborated with him, and that the two promoted the enterprise along the lines previously described; that Schwarz made careful and extensive inquiries, by telegraph and otherwise, as to the value of Midland stock, and obviously purchased it upon information so acquired; that at no time was he informed that it was worth more than $4.80 per share, although Weist and the salesmen at all times represented this same stock to be worth $12.50, and sold it to all comers upon such representations, at the latter figure. The financial statement of the Midland Company received by Schwarz and offered in evidence in his behalf contains information which is in itself sufficient to establish Schwarz’ knowledge of the falsity of the statements in question. The highest value that appellant claims that this self-serving statement could possibly warrant as to Midland stock is $11.65, and some of the salient recitals contained therein áre significant. It informed appellant, and other Midland stockholders to whom it was transmitted, that the assets of the company were believed to be sound, anc. that “there will eventually be little, if any loss on any of them, but the real fact is, that some of them cannot be realized on at the present time, .either as to principal or interest”; “a few have resulted in absolute loss which had to be charged off. We do not expect that very much more will have to be charged off . . . ” Again, one of the false representations which are charged to have been made by the conspirators is that the Midland Company was in process of consolidation with another institution. This was flatly contradicted by the testimony of the witness Striekler, who was vice-president of the Midland Company. While the appellant was in possession of such a statement as that just mentioned, which at most might instil a sense of hope rather than confidence, and of other information as to value, he was purchasing the stock in question as low as $2.30 per share, and yet his forces were actively campaigning for buyers of the same stock at $12.50. There is no evidence anywhere in the record, so far as we have been able to ascertain, that this stock ever had a value of $12.50 per share, though Schwartz was consistently receiving the latter price for stock which at times cost him little more than one-fourth such figure. We think the jury were wholly justified in concluding from the evidence, as they apparently did do, that appellant knew that the price or value of Midland stock was misrepresented.

It is objected that the indictment charged a conspiracy to defraud by the false representation that the market value of Midland stock was $12.50 per share whereas it was then and there in fact worth $5 per share; that the People failed to prove the market value as alleged, and that the judgment should therefore be reversed. It is further argued that the market value of unlisted, stock is the book value, or the price at which it may be bought in the nearest market. The indictment did not so charge. It alleged that said stock was not worth in excess of $5 per share. While the People made no proof as to the actual value based upon assets and liabilities of the Midland Company, the financial statement of that corporation introduced as a part of the defense showed affirmatively that its actual value did not exceed $11.65. However, there is considerable evidence in the record to sustain the contention that the stock had a market value in Minneapolis, and that in that market it was only $2.30 to $4.80. The witness Parks, who qualified as an expert, being a broker from Minneapolis, and familiar with the stock in that market, testified that during the period in which Schwartz bought and sold this stock the minimum market value was $2.30 and the maximum was $4.50. In addition to this there is the undisputed evidence of many purchases by these defendants in Chicago and Minneapolis at approximately these latter figures. Objections to this evidence as proof of the market value of the stock goes to its weight and not to its admissibility.

It appears that the People were permitted to read to the jury the testimony of various absent witnesses, given upon a former trial of this case. It is contended that this was error for the reason (1) that the latter was not a “former trial” within contemplation of section 686 of the Penal Code, but that it was a “mistrial”; (2) that diligent search was not shown to have been made for the witnesses during the second trial, and (3) that as to ’one such witness it was admitted that he had left the jurisdiction after having been served with a subpoena. The legal distinction, if any there be, between a “former trial” and a “mistrial,” as applied to the instant controversy, is not indicated by appellants, and we are aware of none. A “mistrial” is one wherein “a proper decision would have completed the trial.” (Stern v. Wabash R. Co., 52 Misc. Rep. 12 [101 N. Y. Supp. 181]; Fiske v. Henarie, 32 Fed. 425, 427.) It is not denied that the witnesses in question, upon the previous trial of the same issues appeared in open court, in the presence of the defendants, who either in person or by counsel cross-examined them, or had an opportunity to do so. This being true, all the requirements of the statute were satisfied. It was testified that certain of the witnesses who resided and maintained businesses outside of this state were known to have left the jurisdiction, and that at the time of their departure they stated that they would not return; that process servers thereafter called at the local hotel where they had been, and were there informed that the witnesses had gone. It appeared that these witnesses were not expected for the retrial of the case, although an attempt was made to serve them. The trial court concluded that under the circumstances a sufficient showing of diligence had been made to render their previous testimony admissible. The question of diligence in such cases is left to the sound discretion of the trial court, based upon the facts and circumstances before it, and we think there was no abuse of such discretion in this instance. (People v. Ramos, 52 Cal. App. 491 [199 Pac. 544].) Again, the mere fact that the witness Baybum had received a subpoena before he left the jurisdiction is not material. We know of no rule, and are cited to none, requiring that the service of process may be said to render incompetent testimony otherwise admissible under the provisions of the statute. We find no error in the rulings upon these objections.

Upon the trial objections were interposed to the testimony last mentioned, and it was followed by motions to strike, upon the ground that the statute of this state which authorized its reading was unconstitutional. Appellants advanced the somewhat novel argument that the sixth amendment to the constitution of the United States provides that a defendant in a criminal action is entitled “to be confronted with the witnesses against him”; that article I, section 3, of the constitution of the state of California declares that “the constitution of the United States is the supreme law of the land”; that the sixth amendment to the federal constitution was in full force and effect at the time of the adoption of the California constitution in 1879, wherefore, it is said, the amendment to the federal constitution must be deemed a part of the constitution of California, and hence that the legislature “had no jurisdiction to enact that part of subdivision 3, section 686, of the Penal Code, which permits the reading of the testimony of a witness given on a former trial in a criminal action, because that provision is in direct conflict with the provision of the sixth amendment” quoted. It is not even suggested that the witnesses in question did not appear at the first trial or were not cross-examined upon all the issues concerning which they gave direct evidence. It must be conceded that at that time they confronted the defendants, and that therefore their testimony, when read to the second jury, complied with all the requirements of the sixth amendment to the constitution of the United States. This amendment does not require that all witnesses must personally appear and testify in the presence of a particular jury. Its object is to provide a person who is being tried for a public offense full opportunity for cross-examination, and this right these appellants admittedly had exercised. Counsel freely admit that their argument is confronted with numerous decisions holding- that section 686 is constitutional, but they assert that in those cases the courts overlooked the fact that the constitution of the United States was in force when the state constitution was adopted. However, since the constitution of the United States is the “supreme law of the land,” the fact that the ratification of an amendment antedates the state constitution or a state statute can afford it no greater force than an amendment thereafter incorporated into the organic law of the land. As was said in People v. Wilson, 26 Cal. App. 336 [146 Pac. 1048]: “ ‘The fifth and sixth amendments of the Constitution of the United States are restrictive of the powers of the federal government and not restraints upon the states.’ (Davis v. Texas, 139 U. S. 651, 653 [35 L. Ed. 300, 11 Sup. Ct. Rep. 675] ; Brawn v. New Jersey, 175 U. S. 174 [44 L. Ed. 119, 20 Sup. Ct. Rep. 77].) We are of the opinion that this conclusion is not affected by the statement contained in section 1897 of the Code of Civil Procedure, that the written law of this state is ‘contained in its constitution and its statutes, and in the constitution arid statutes of the United States.’ ”

It is said that the instruction that “the question whether the witnesses Clark and Farrell or any other persons not named in the indictment, were or were not conspirators, or were or were not indicted in connection with the transactions involved in this case is wholly irrelevant and immaterial,” and must not be considered, was prejudicial error because Clark was at one time secretary and treasurer of the Securities Company, and was, therefore, an accomplice. The jury was properly instructed as to their duty in weighing the testimony of witnesses, which was the only material consideration. The existence of the indictment, or the fact that others may or may not have been accused of the same offense, had no bearing upon the question of guilt or innocence of the defendants then before the court. The instruction did not, as claimed by appellants, proclaim as a matter of law that the witnesses were accomplices.

Certain instructions which were requested by the defendant Schwarz and refused were to the effect that telegrams in evidence should not be considered by the jury in determining the market price of the stock, also that individual sales of stock were not to be considered in determining the market value. We arc cited to no authority sustaining these propositions. Many authorities are cited which hold that certain other evidence is admissible and proper in measuring market value. In some o£ the cases cited by appellants it is said that where stocks are unlisted it is proper to prove the market value by showing the assets of the corporation and deducting therefrom its liabilities, but in none of these decisions is there any statement to the effect that other evidence is not admissible, or, indeed, sufficient. On the other hand, there is an abundance of authority upholding the use of evidence of actual sales and offers for sale to establish “market value,” or “market price.” In Muser v. Magone, 155 U. S. 240 [39 L. Ed. 135, 15 Sup. Ct. Rep. 77, 81], it was held that “market value” is the price which dealers are willing to receive and purchasers are compelled to pay. To the same effect are Sanford v. Peck, 63 Conn. 486 [27 Atl. 1057]; Murray v Stanton, 99 Mass. 345, 348; Palmer v. Penobscot L. Assn., 90 Me. 193 [38 Atl. 110]; K. C. W. & N. R. Co. v. Fisher, 49 Kan. 17 [30 Pac. 111]; Dady v. Condit, 188 Ill. 234 [58 N. E. 900]; Pittsburg V, & C. R. Co. v. Vance, 115 Pa. 325 [8 Atl. 764], Further, transactions had at about the time in question may be shown. (Noonan v. Ilsley, 22 Wis. 27.) Hence, the telegrams were competent, as purchasers of Midland stock by the defendants were made through them as a medium.

It is further contended that the rendition of separate verdicts convicting four of the defendants, and one acquitting the defendant Donlin, and the entry of individual judgments as to each, constituted a “miscarriage of justice.” We are not cited to any authority or given a valid reason for so holding, and we are unaware of any possibility of advantage to appellants from a consolidated verdict finding them guilty of the offense charged. In all jurisdictions where to our knowledge the question has been decided, separate verdicts have been sustained. (Davis v. State, 8 Ala. App. 147 [62 South. 1027]; Woodward v. State, 84 Ark. 119 [104 S. W. 1109]; State v. Cotterel, 12 Idaho, 572 [86 Pac. 527]; Meadowcroft v. People, 163 Ill. 56 [54 Am. St. Rep. 447, 35 L. R. A. 176, 45 N. E. 991]; Hughes v. State, 65 Ind. 39; Arnold v. Commonwealth, 21 Ky. Law Rep. 1566 [55 S. W. 894]; State v. Johns, 259 Mo. 316 [168 S. W. 587].) It is too elementary to require the citation of authority that a conviction of two or more defendants of the crime of conspiracy is not dependent upon a conviction at all.

Aside from the questions heretofore considered, it is said in behalf of the defendant Weist that he was merely a victim of circumstances, and that the evidence was insufficient to convict him of conspiracy with his codefendants. We cannot say as a matter of law that the verdict of the jury was unsupported, or that it was insufficient to sustain the judgment. It at once appears quite obvious that many of the circumstances which resulted in his conviction were of his own ingenious creation in confederation with the defendant Schwarz.

There are no other alleged grounds of appeal which merit attention. |

The judgments as to appellants Frankfort and Goldner are reversed.

As to appellants Schwarz and Weist the judgments and orders appealed from are affirmed.

Finlayson, P. J., and Works, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on July 30, 1926, and a petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 26, 1926.