McCOMB, J., Dissenting. I dissent.
Defendants were accused by the district attorney of the county of Los Angeles of the crime of conspiracy to commit grand theft and, in seven separate counts, of having committed grand theft. They were tried jointly before the court without a jury, who found the defendants guilty as follows: John Mossman Meyer—Counts VI, VII, and VIII. Warren R. Sheehan | —Counts II, III, IV, V, VI, VII, William Brooks Sisson ( and VIII. E. S. Tremelling—Counts II, III, IV, V, and VIII.
The information was dismissed as to defendant W. M. Fidroeff and the court granted defendants ’ motions to dismiss count I thereof.
Defendants Sheehan, Sisson, and Tremelling alone appeal from the judgments and orders denying their motions for a new trial.
Viewing the evidence most favorable to the prosecution, the facts in the instant case are:
During the month of October, 1937, defendant Sisson (also known as Smith), who was a business opportunity broker operating under the name of Republic Finance Company in Los Angeles, caused to be inserted in the Los Angeles Examiner an advertisement under the business opportunity column seeking assistant truck drivers, garage men, machinists and service station attendants. Each advertisement intimated that there would be incomes from the various positions ranging from $35 to $55 a week and stated that a moderate investment by each applicant would be required. Similar advertisements were inserted by defendants Tremelling and Meyer.
During the same month defendant Sisson contracted for the purchase of two Lincoln automobiles, one bearing engine num[100]ber KB-1471 with B.E.P.C.S. plate No. 1951, the other, engine number KB-1000 with B.E.P.C.S. plate No. 1952.
In response to the aforementioned advertisements Mr. Nehls appeared at the office of Republic Finance Company, and on October 27, 1937 (count II), purchased from defendant Sheehan for $300 a one-half interest in the Lincoln ear bearing engine number KB-1471 and also a one-half interest in a chartered run to Newport Beach.
October 28, 1937 (count III), defendant Sheehan sold to Mr. McAmis for $300 a one-half interest in the automobile bearing engine number KB-1000, and also a one-half interest in a chartered run to Newport Beach.
November 2, 1937 (count V), and November 13, 1937 (count VII), defendant Sheehan entered into contracts with Mr. Loeseher and Mr. Talbot respectively similar to the contract he had previously made with Mr. Nehls, excepting that Mr. Loeseher paid $300 for his contract and Mr. Talbot paid $400 for his agreement.
November 2, 1937 (count IV), defendant Sheehan sold to Mr. Schirmeister for $250 a one-half interest in a 1929 Packard automobile and also a one-half interest in a chartered run to Newport Beach.
November 8, 1937 (count VI), defendant Sheehan entered into a contract with Mr. Mercurio for the sum of $250 similar to the one he had previously entered into with Mr. McAmis.
In each instance after consummating the transactions above set forth the parties were told to report for work the next day. All reported but none were ever assigned. any regular work. .
After several weeks the purchasers, excepting Mr. Mercurio, upon demanding their money back, received notes from defendants Fidroeif and Sheehan, in each instance aggregating the amount they had paid for their agreement, and returned their contracts to defendant Fidroeif, who in turn delivered them to defendant Sheehan, who destroyed them. The contract retained by Mr. Mercurio, and which was typical of all of the contracts executed by defendant Sheehan, read as follows:
[101]“REPUBLIC FINANCE COMPANY
“1105 W. 7th Street,
“Los Angeles, California.
“PURCHASE AND SALES AGREEMENT.
“I hereby deposit with Republic Finance Company the sum of $50.00 as part payment of the purchase price of one-half interest in chartered sedan service business with only one sedan. Above includes one-half interest in 1,932 Lincoln sedan. Profits are to be divided every 30 days. Located at 408 East 5th Street, in the City of Los Angeles, County of Los Angelos, State of California, owned by W. R. Sheehan and listed by said owner thereof with Republic Finance Company as agent for the sale, and I hereby agree to purchase said property or business upon the following terms and conditions, to-wit:
“The full purchase price of said property or business to be $450.00; the sum of $300.00 additional cash to be paid on or before 11-8-37, and the balance of $200.00 as follows: @ $5.00 every 7 days.
“Said sum of $50.00 deposited as above to be applied to the settlement of all damages sustained by reason of my failure to complete the purchase as outlined above, and Republic Finance Company may retain from said sum the amount of any commission or compensation which would be due it upon the sale of said property at above price under the terms of said owner’s contract, as if it had made said sale to me at said price. The purchaser thereof hereby certifies that he has made his own investigation of the above business prior to making this purchase.
“Los Angeles, Calif, date 11-6-37. “Purchaser Charles Mercurio “Address 1047 So. Irolo St.
“I hereby accept and ratify the sale mentioned in the foregoing agreement upon the terms and conditions therein mentioned.
“Los Angeles, Calif, date 11-6-37. “Owner W. R. Sheehan
“Home address.”
Each defendant urges reversal of the judgments on the ground that there is no substantial evidence to sustain the [102]findings of fact upon which the judgments were necessarily predicated.
This proposition in my opinion is tenable except as to defendant Sheehan (count VII), and is governed by the following established principles of law:
First: (A) To constitute the offense of grand theft by means of false pretenses the following elements must be proved: (1) intent to defraud; (2) actual fraud committed; (3) false pretenses must be used for the purpose of perpetrating the fraud, and (4) the owner must have been induced to part with his property because of the false pretenses made use of for that purpose. (People v. Wasservogle, 77 Cal. 173, 175 [19 Pac. 270].)
(B) The false pretenses referred to in the third element mentioned above must be of a past event or existing fact, and a representation of a future event, whether in the form of a promise or an opinion, does not constitute a criminal, false pretense. (People v. Downing, 14 Cal. App. (2d) 392, 395 [58 Pac. (2d) 657].)
Second: One of the necessary elements to be proven to establish the offense of grand theft by trick and device is that there be evidence of a preconceived intent upon the part of the defendant to use the money which is obtained for a purpose different from that for which the person parting with it intended it to be used. (People v. White, 124 Cal. App. 548, 553 [12 Pac. (2d) 1078]; People v. Robinson, 107 Cal. App. 211, 221 [290 Pac. 470]; People v. Solomon, 75 Cal. App. 9, 14 [241 Pac. 931,]; People v. White, 66 Cal. App. 703, 706 [226 Pac. 962].)
Third: One of the necessary elements of a conspiracy is that there be evidence from which the jury may reasonably infer an understanding, combination, or agreement between two or more persons to perpetrate an unlawful act. (People v. Kizer, 22 Cal. App. 10, 14 [133 Pac. 516, 134 Pac. 346].)
Fourth: Circumstantial evidence of guilt is not sufficient to sustain a conviction where the evidence relied upon is of such a character as to be as consistent with the hypothesis of innocence as that of guilt. (People v. Lamson, 1 Cal. (2d) 648, 662 [36 Pac. (2d) 361].)
Applying the foregoing rules to the instant ease, we find the record with reference to defendants Sisson and Tremel[103]ling, and to defendant Sheehan as to counts II, III, IV, V, and VI, to be completely devoid of any evidence that they or any of them made any false representation of a past or existing fact to the complaining witnesses, or any of them, which induced any of the complaining witnesses to part with their money when entering into the various contracts with defendant Sheehan. Therefore, one of the necessary elements to establish grand theft by means of false pretenses, to wit, that the complaining witness must have been induced to part with his money or property because of false pretenses made use of for that purpose, is absent, and there was no evidence to sustain a conviction against such defendants for having committed this crime.
As to the same defendants there is no evidence in the record that they intended to use the money which was obtained from the complaining witnesses for any purpose different from that for which the latter delivered it to them. Therefore, one of the necessary elements to establish the crime of grand theft by trick and device being absent, their conviction of this crime cannot be sustained.
Since every deduction from the circumstantial evidence was equally compatible with innocence as guilt, there was not substantial evidence to sustain the findings of fact upon which the conviction of these defendants of grand theft was necessarily predicated, the conviction of defendant Sisson on counts II, III, IV, V, VI, and VII and of defendant Tremelling on counts II, III, IV, and V should be reversed.
With reference to defendant Sheehan we find a different situation. An examination of the record shows that on November 1.3, 1937 (count VII), he sold to Mr. Talbot a one-half interest in an automobile bearing engine No. KB-1471, in which automobile he had previously sold a one-half interest to Mr. Nehls (count II) and also a one-half interest to Mr. Loescher (count V). It is, therefore, evident that as to defendant Sheehan’s transaction with Mr. Talbot there is substantial evidence to sustain the implied finding of the trial court that all of the elements of the crime of grand theft by means of false pretenses were present.
With reference to count VIII of the information, charging the defendants with a conspiracy to commit the crime of grand theft, applying the rule that circumstantial evidence of guilt is not sufficient to sustain a conviction where the [104]evidence relied upon is of such a character as to be as consistent with the hypothesis of innocence as with that of guilt (People v. Lamson, supra) to the facts in the instant case, there is no evidence to sustain a finding of the trial court that there was an understanding, combination, or agreement between any two of the defendants to commit grand theft. Therefore, one of the essential elements of a conspiracy was lacking and the judgment of guilty as to these defendants on this count should be reversed.
For the foregoing reasons in my opinion the judgments and orders relative to defendants Sisson and Tremelling should be reversed and a new trial ordered. The judgments and orders relative to defendant Sheehan as to counts II, III, IV, V, VI, and VIII should be reversed and a new trial ordered as to such counts. The judgment and order denying defendant Sheehan’s motion for a new trial as to count VII should be affirmed.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 3, 1939, and an application 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 March 17, 1939.