People v. Flumerfelt

WARD, J. Appellants were indicted for grand theft and violation of the Corporate Securities Act, and a jury trial resulted in their conviction of one or more of the acts charged. They have taken a joint appeal from the judgment. There were nine counts in the indictment, four charging them with grand theft, and five with violation of the Corporate Securities Act. Appellants Flumerfelt and Ardelle were convicted on all nine counts; appellant King on all but the fifth (one of the counts of grand theft), and Fletcher on four counts of violation of the Corporate Securities Act. Sentences were imposed against each, to run concurrently; and in addition, as to Flumerfelt and Ardelle, to run concurrently with a term of imprisonment imposed upon each for a similar offense in [3]another county. (People v. Flumerfelt, 35 Cal. App. (2d) 495 [96 Pac. (2d) 190].)

It is contended that the evidence is insufficient to sustain the verdicts or support the judgments upon each count; that certain instructions on conspiracy were prejudicial error and that the appellants were not accorded a fair and impartial trial by reason of the admission of evidence concerning other transactions which they claim were not connected with the offenses charged.

The ground of appeal, that the appellants did not conspire to do anything unlawful and that it was error to present conspiracy instructions to the jury, must be based upon the claimed insufficiency of the evidence to show a conspiracy, as no objection is made to the form of the instructions thereon. If the evidence is sufficient to show appellants guilty of the unlawful acts alleged in the indictment upon which each was found guilty, and if the evidence is also sufficient to show that they were acting in concert and agreement in such acts performed, then this contention will need no further consideration.

The facts are as follows: Flumerfelt and Ardelle, operating as a partnership under the name of Ardelle-Flumerfelt Syndicate, were interested in a machine claimed to be a gold recovery machine, used to salvage any remaining gold in mine dumps or tailings. The evidence indicates that certain recovery was accomplished, but, contrary to the representations of these two, there was apparently nothing unusual, distinctive or secret about the machine, nor did they have a patent thereon. These appellants, together with an attorney, one John M. Cartwright, conceived a plan of using the machine to exploit the public through the organization of a corporation. In consideration of the transfer of the machine to such corporation, appellants King and Cartwright agreed to secure sufficient funds to acquire a mining dump near Angels Camp to be operated by the corporation. All of the parties were to receive “promotion stock” share and share alike, Ardelle and Flumerfelt to retain control of the corporation through a voting trust. Subsequently Fletcher became a party to the scheme through appellant King, in whose share of the promotion stock he was to participate. In accordance with their agreement, in May, 1937, Cartwright and King