People v. Van

California Court of Appeal Feb 6, 1939 No. Crim. 2022Published

Before: Spence

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Holding. The court held that the superior court lacked jurisdiction over the conspiracy charge involving a lottery (a misdemeanor), but possessed jurisdiction over the conspiracy charge involving false pretenses, which falls under the third classification of Penal Code section 182.

Issues

Whether the superior court had jurisdiction over a conspiracy charge to operate a lottery.
Whether the superior court had jurisdiction over a conspiracy charge to obtain money by false pretenses.

Disposition. Reversed in part and affirmed in part.

Quotations verified verbatim against the opinion

“Respondent concedes that appellant’s contention with respect to said first count should be sustained and we see no escape from that conclusion”

“the conspiracy charged in said second count was one within the third class mentioned in Lesser v. Collins, supra, and the superior court therefore had jurisdiction.”

SPENCE, J.

—Defendant Van and others were jointly charged with conspiracy in an indictment containing two counts. Defendant Van was convicted on both counts and he appeals from the judgment of conviction and the order denying his motion for a new trial.

Said defendant, together with other defendants, devised a scheme known as “The Great American Football Pool”, under which they proposed to sell some three million tickets to the public at $1 per ticket. These tickets were designated by numbers and letters and the winners of weekly and final prizes were to be determined by said numbers and letters after making certain involved computations from the football scores of forty designated college football teams. The first grand prize of $100,000 and other large prizes were listed on the tickets and on the pamphlets which were printed and distributed in explanation of the scheme. In this pamphlet it was stated, “The Pool operates automatically, all tickets having an equal chance to win.” After some of these tickets had been sold to the public, this prosecution was commenced.

The first count of the indictment charged that the defendant Van and others conspired “to set up, establish, operate and conduct a lottery in violation of section 320 of the Penal Code ... ”, The second count of the indictment charged that defendant Van and others conspired “to obtain money by false pretenses and by false promises with fraudulent intent not to perform such promises” in violation of subdivision 4 of section 182 of the Penal Code. The allegations of ' both counts were set forth in some detail and in each count it was alleged that various overt acts were done to effect the object of the conspiracy charged in said count.

[665]

The main contention of appellant on this appeal is that the superior court did not have jurisdiction of the offense charged in either count of the indictment. The discussion of this contention requires a consideration of the provisions of section 182 of the Penal Code which provides in substance that if two or more persons conspire to do any of the acts specified in any of the five numbered subdivisions of said section, such persons are punishable as provided in said section. Two paragraphs of said section deal with the subject of punishment. This court heretofore had occasion to consider these two paragraphs in

People v. Van

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SPENCE, J.

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