People v. Boggess

The defendant was convicted of an alleged violation of section 14 of the “Corporate Securities Act,” which provides that, “Every officer, agent or employee of

[1] Upon behalf of the defendant it is contended at the outset that the amended information does not state a public offense in this, that the alleged false statement was a matter that was entirely immaterial because it was not required by the provisions of the Corporate Securities Act, which provides that, “Such application shall be in writing, shall be verified as provided in the Code of Civil Procedure for the verification of pleadings, and shall be filed in the office of

It is argued that the amended information does not state an offense because there is nothing within the requirements of the section of the statute just above quoted which calls for any statement of the past resources and past production of any mine or any other property upon which an application is made for the issuance of securities. It is insisted that the fact that the mine in the instant case may or may not have produced $7,000 per month net at a period twenty years or more before the filing of the application in the instant case was a matter entirely immaterial to the application, and, therefore, foreign to any consideration required to be given to the application and consequently did not in any way tend to affect or influence the corporation commissioner in his judgment, based upon such application, as to whether or not the permit to issue‘securities should be granted.

Although the alleged act was not within the letter of the provisions of section 3 of the “Corporate Securities Act” by reason of the fact that such statement of past production is not specifically required by said section, still section 14 of the “Corporate Securities Act,” which defines the crime and declares the penalty is very broad in its scope in that it declares the filing of any false statement to be a public offense. The fact that the alleged false statement was not required by section 3 of the “Corporate Securities Act” does not relieve the defendant from the penalty prescribed by section 14 thereof. The conclusion to be reached by the commissioner of corporations as to the propriety of granting or refusing the permit to issue securities would, of course, be based upon all of the facts contained in the application for the permit. The false statement charged against the de

[2] It is also urged by defendant as a ground for the reversal of the judgment rendered that the offense of filing the false statement with the commissioner of corporations, was committed in the city and county of San Francisco, and, therefore, the superior court in and for Sacramento county had no jurisdiction to try the case. It is an undisputed fact in the case that the application was taken by an attorney for the mining company, at the request of the defendant, to the branch office of the commissioner of corporations in San Francisco on the third day of April, 1920, and delivered by him to the party in charge of the branch office, and that the filing fee was paid by said attorney at the same time at the branch office of the commissioner of corporations in San Francisco. The evidence also shows, however, that the application was subsequently and in due course forwarded by the deputy in charge of the branch office in San Francisco to the principal office in Sacramento and finally filed there.

A final filing may consist of the mere physical act of the person leaving a paper at the proper office with the person in charge thereof to be filed. This is the character of the filing referred to by those cases fixing the time of the accrual of certain rights in civil matters dependent upon the filing of certain papers. In such cases it is of course but proper that the right arising from the filing of certain papers should accrue as soon as the person filing the papers has done all in his power to perfect the filing; that is to say, as soon as he has left the papers with the proper officer for filing. (Estate of Carroll, 190 Cal. 105 [ 210 Pac. 817 ].) Obviously, a filing, however, is not fully completed as a foundation for a right where the paper filed, before it is acted upon, must, or may be, forwarded for filing and consideration to another office of the same or some other governmental or ministerial department of the state or a political subdivision thereof.

The main office of the commissioner of corporations as provided by law was in Sacramento, and the application in the instant case, relating as it did to mining matters, required the attention and approval of a Mr. Miller, the special mining deputy, whose duty it was to make a special investigation of the mine before the permit could be issued. (Stats. 1917, p. 682.) Mr. Miller, at the time the application was presented to the branch office in San Francisco, was in Sacramento, and, therefore, the application was forwarded by the deputy commissioner in San Francisco to

[3] It is the claim of the defendant here, and it was his defense in the court below, that the application in question, when read and considered in its entirety, was not intended to be understood as containing a representation that the defendant had made the mine pay $7,000’ net per month for the entire period of the three years, “1900-1 and 2.”

“During the time Boggess had absolute charge of the operations at the mine in 1900—1 and 2, he made it pay net over $7000.00 per month—NET over dll mine operating expenses, quicksilver selling at an average of $45.00 per flask. He is so absolutely confident with the proper funds required, as indicated herein, and at prevailing prices for quicksilver, and without interference with his management at the mine, he can make it pay from $12,000.00 to $15,000.00 Net per month for ten to fifteen years.”

It was the defendant’s defense that the only period of time intended to be covered by the statement alleged to be false was that particular period of time in which he was in absolute charge of the mine. In this behalf it is argued that while the particular statement alleged to be false, standing alone, is perhaps susceptible to the construction

In support of the contention immediately under consideration reference is also made to another statement contained in the application that the mine was sold in 1901 to a New York syndicate. Prom this it is argued that the application shows that the defendant was not in absolute charge of the mine at any time in the year 1902, nor after the sale of the mine to the syndicate in 1901, until the year 1916, “when,” as the application reads, “the present owners acquired it.” It is insisted that the two statements last above referred to,

Incidentally it may not be amiss to say at this point that the defendant testified at the trial that he was in absolute charge of the mine only from September, 1900, to May, 1901, and that he did not have “absolute charge” in any part of the year 1902 and that the reference in the alleged false statement to the year 1902 was a typographical error which was the result of a misunderstanding of the stenographer to whom the application was dictated amid the noise and confusion of a hotel lobby. This, of course, was a question for the jury to determine, but it should be noted that the application itself shows other admitted typographical errors in the statement of material dates which escaped correction. Thus, it appears that the real date of the application was January 20, 1920, but the typist typed it 1919. Another obvious typographical error appears elsewhere in the application where “1919” was typed instead of the year 1917.

We are not to be understood in this discussion of the defendant’s defense as holding that his construction of the application, as above outlined, is correct nor that his testimony concerning typographical errors in the application should have been accepted by the jury. Our reference to this phase of the ease is purely for the purpose of illuminating the remaining points presented in support of a reversal of the judgment which will be discussed later in this opinion.

It was the theory of the prosecution that the alleged false statement was intended to cover every month during the three years referred to in the application. No evidence was offered by the prosecution tending to show specifically what the actual production of the mine was during any one month of those years. The case of the prosecution consisted largely, if not entirely, of evidence as to what was the yearly production of the mine from which its monthly production was arrived at by dividing the total production of the year by the number of months in the year. Part of the evidence of the prosecution as to the production of the mine was

There is evidence in the record, elicited 'by the testimony of a Mr. Boeth, a witness for the defendant, showing the amount of quicksilver handled for the mine in question during several of the months in which the defendant had absolute charge of the mine, by a quicksilver selling company, known as the Eureka Company, which bought and sold quicksilver from all the quicksilver mines in California. This is the only direct evidence as to the production of the mine in question for any one month. This evidence, covering, as it did, practically the period of time in which the defendant was in absolute charge of the mine, shows the

In corroboration of this claimed production from September, 1900, to May, 1901, there is the testimony of the defendant’s witness O’Bryant, who hauled the quicksilver from the mine for shipping during that period, to the effect that he hauled on an average of 280 to 300 flasks per month. It is to be noted that the testimony of this witness covers practically the period of time during which the defendant claims to have been in absolute charge of the mine. The testimony of another witness for the defendant, one Buchanan, tended to corroborate O’Bryant’s testimony. So, also, did the testimony of one Dunfield, a witness for the defendant, who was in charge of the condenser at the mine in question for five or six months commencing in the fall of 1900. This witness further testified that there was an enormous big run of quicksilver during the time he was there, which times coincides with the time in which the defendant claimed that he was in absolute charge of the mine. There is other evidence in the ease that in 1901 the mine in question disclosed a formation which indicated a considerable amount of valuable quicksilver ore.

Upon behalf of the defendant there was offered and received in evidence an excerpt from “Mineral Resources of the U. S., Department of Interior, U. S. Geological Survey,” which stated that “under ordinary circumstances quicksilver could be produced in California at a cost of $3.00 per ton of ore mined and smelted.” And the defendant himself

In short there is direct and positive evidence in the record adduced upon behalf of the defendant tending to show that during several months of the years designated in the application the mine did actually pay over $7,000 net per month over operating expenses. On the other hand, there is evidence consisting of general estimates tending to show that during the said years the mine did not pay $7,000 net per month. It is apparent from a perusal of the evidence adduced upon the entire case that the guilt or innocence of the defendant hinged upon the solution of a perplexing problem which necessarily depended in a large measure upon a close consideration of a hypothetical situation developed by the evidence of the prosecution as against an actual situation developed by the direct evidence of the defense.

We are not unmindful of the rule that if there be any substantial evidence in the record tending to support a verdict, the judgment based thereon should be sustained. And had the record before us disclosed no errors or irregularities occurring during the course of the trial operating to the prejudice of the defendant to the extent that in all likelihood they contributed to the verdict, we might in the instant case be constrained to hold that the evidence adduced upon the entire case suffices to support the verdict. We are also not unmindful of the fact that judgments in criminal cases have been affirmed in spite of serious errors and irregularities occurring during the course of the trial, but in those cases the errors and irregularities were evidently the result of inadvertence, and the evidence of the guilt of the defendant so overwhelming that it could not be said that the result of the jury’s deliberations would have been different had not the errors and irregularities intervened. On the other hand, there are cases in the books similar to the one at bar, where the evidence of the defendant’s guilt was not overwhelming, which were reversed because of pronounced, persistent and pernicious misconduct during the course of the trial, which obviously intervened to deprive the defendant of a fair and impartial trial and which warranted the con

Numerous specifications of errors in the rulings of the trial -court relating to the. reception of evidence offered on behalf of the prosecution and the rejection of evidence offered on behalf of the defense are urged in support of a reversal of the judgment. In some instances the objections interposed by the defense were not well taken. These particular objections need not be discussed.

[4] Apparently it was the theory of the defense in part that the relative cost of treating high-grade ore was less than the cost of treating low-grade ore. In other words, the richer the ore the lower would be cost of production per flask, and conversely, of course, the lower the grade of ore the higher the cost of production. There is evidence in the case tending to show that the mine in question was a “high-grade ore” mine, and in keeping with the theory of the defense there was propounded to one of the witnesses the question, “Prom your experience, would you say it would cost any more per ton to treat low-grade ore or high-grade ore?” This question was objected to upon the ground that “the witness is not qualified as an expert, and secondly, that according to his own testimony his experience is confined largely to one mine.” It was not necessary, in order to render this witness’ testimony admissible, that he should qualify as an expert in the strict sense of the term. [5] It is the generally recognized rule that the opinions of non-expert witnesses are admissible upon a great variety of unscientific questions arising every day and in every judicial inquiry. These opinions are not admitted in evidence as testimony of experts, strictly so called, but rather upon the theory that they depend upon knowledge which anyone may

Doubtless if an answer to the question objected to had been permitted it would have been followed by other interrogatories which would have elicited the difference in the cost of the treatment of the different grades of ore. The trial court, however, sustained the objection upon the ground that “unless he [the witness] says he has some knowledge of the cost of production—of what the cost of production was at the Abbott mine, [the mine in question] his testimony would be immaterial.” Clearly the question objected to was not directed to the cost of production at the mine in question, but related solely to the question as to what was the difference in the cost of the production of high grade and low grade ore, and therefore the ruling of the trial court was made and -based upon a ground which was clearly at cross-purposes with the fact sought to be elicited by the question. [8] The ruling of the trial court was tantamount to a declaration that, regardless of the qualification of the witness to give his opinion concerning the fact involved in the question objected to, he would not be permitted to testify unless it were shown that his opinion was based upon his knowledge and observation of the situation existing at the mine in question. It is obvious, therefore, that no

The record shows, upon this phase of the case, that the witness, in addition to being engaged in various commercial enterprises, was also the principal owner of a quicksilver mine in California which, although now dormant, he “run with other parties since 1887.” To “run” means “to conduct; manage; carry on” (Webster’s New International Dictionary). In addition to his intimate association with the operation of that mine the witness had occasion to investigate and inspect a great many other quicksilver mines. He testified he “would look at . . . and class them” with his mine “from that time on.” This witness was also a member of the Eureka Company, a corporation composed of all the quicksilver mines of the state, including the mine in question, which was organized for the purpose of selling the output of the quicksilver mines of the state and keeping up the price of their products. His experience, we think, was sufficient to show that he was possessed of knowledge, based upon observation and experience, of the fact sought to be elicited by the question objected to, and, therefore, a proper and sufficient foundation was laid for the introduction of his testimony. Such a foundation having thus been laid he should have been permitted to answer the question.

[9] We are not prepared to say that the difference in the cost of treating high and low grade ore is a matter of such common knowledge that the jury might well be assumed to know what that difference was without receiving evidence upon the subject.

While it is true that the defendant himself testified as to the relative cost of treating high grade and low grade ore, still the defendant’s testimony was so radically discredited by the personal interposition of the trial judge as to seriously impair if not utterly destroy its value as evidence. And in such a situation the refusal to receive in evidence the testimony of a disinterested witness concerning that subject matter clearly redounded to the disadvantage of the defendant.

Moreover, the record shows that after the minutes in question were offered and marked for identification the district attorney announced that he offered 11 such portions thereof” as he had marked with a blue pencil, which he desired to thereafter read in evidence. Thereupon counsel for the defendant again interposed the objection that the reading of those portions of the minutes was 11 incompetent, irrelevant, and immaterial and not pertaining to the issues of the case.” This objection was also overruled. Surely this objection was sufficiently specific to direct the court’s attention to the many immaterial matters embodied in the minutes in question.

[13] The prosecution, in an endeavor to show that the defendant knew that his statement that he had made the mine pay a certain specified sum in the years 1900-1 and 2, was false, offered and succeeded in having received in evidence a report made to and filed with the superior court of Lake County, February 19, 1904, by the defendant, as receiver of the mine in question. This particular piece of

[14] A witness for the prosecution was permitted to testify as to the low percentage of quicksilver extracted from the tonnage mined at the mine in question in the years 1916 and 1917, which percentage he learned upon an examination of the mine made in the year 1919. Counsel for the defendant first objected to the testimony sought to be elicited from this witness upon the specific ground that it was incompetent, irrelevant and immaterial, “not pertaining to the issues in this case,” “as hearsay,” that the examination was not made at the request of the defendant and that it was “too remote.” This particular objection the trial court overruled upon the ground that “it didn’t necessarily have to be at the request of the defendant. If a man finds a state of affairs existing there it may have been as the defendant represented to the state or he may have found different conditions.” Counsel for the defendant then interposed the further objection that “the examination is not confined to the time; should be limited to the time alleged in this information.” This objection was overruled. In support of these rulings it is insisted that the only objection made to this particular testimony worthy of consideration was that which went to its remoteness and it is argued that the testimony in question, even though it related to a time some sixteen years subsequent to the time mentioned in the alleged false statement, was not too remote. With this contention we cannot agree. Although the objection as made did not in terms specify as one of its grounds that no showing was made that the conditions at the mine were the same in 1919, when the witness examined it, as they were in the years 1900-1 and 2, nevertheless, the objection as made apparently was sufficient to direct the trial court’s mind to the necessity of such a showing, for the court in one of its

It is suggested that “the case presented by the prosecution was undoubtedly legally sufficient to support a verdict of conviction. The case thus made by the prosecution was strengthened rather than weakened by the evidence produced by the defendant and especially by the cross-examination of the defendant himself.” In support of this suggestion excerpts from the defendant’s testimony are referred to and reference is also made to other evidence which, it is

Nor can we concur in the contention that the defendant was compelled to admit that the statement in his application that “the Supreme Court Records of California prove this fact”—referring to the fact that the mine paid $7,000 net per month—was false. The defendant explained that when he made the statement in his application he was referring to the briefs filed in the supreme court in the case of Continental Building & Loan Assn. v. Boggess. A perusal of Exhibit “R,” attached to the application to the commissioner of corporations, which contains excerpts from the briefs in the case referred to shows that the defendant had in mind, when referring to the records of the supreme court, that the briefs of the attorneys in the case constituted a part of that record. Those briefs contained the statement that

As we read and understand the record it does not show that the defendant declared under oath in the case of Continental Building & Loan Assn. v. Boggess that the profits of the mine from November, 1900, to Hay, 1901, amounted only to about $32,000. True, he did say that “the profits” of the mine went into the hands of Mr. Corbin as treasurer of the company and that “these profits” amounted to about $32,000 over the actual operating expenses from November to May. But he explained further that this particular $32,000 was the residue of the profits of the mine which actually came into the hands of Mr. Corbin as treasurer after there had been dispersed to other persons a sum aggregating $22,000, which would make a sum total of $54,000, and figure a net profit of over $7,000 per month.

It is asserted that the defendant made three different written statements as to the amount spent in reopening the mine in 1916' and 1917, in one of which he placed it at $135,000, in another of which he placed it at $165,000, and in the third at $60,000, and he testified on the stand that he thought it was close to $100,000. A close consideration of the evidence upon this phase of the case shows that the defendant when referring to the $165,000 was referring to the amount of money spent in regaining title to the mine and -not to the amount of money expended in re-equipping the mine, which obviously are totally different expenditures, and that when referring to the $60,000 he had in mind the amount of money expended in 1916 only. The only discrepancy, therefore, is between the $135,000 and the $100,000 and, inasmuch as the $100,000 referred to the amount of actual cash expended and the $135,000 included the interest on the money expended, it cannot be said that there was any substantial variation in the defendant’s statements as to the amount expended in reopening the mine.

It is contended that the evidence shows that the defendant “had endeavored to induce William Forstner, a mining expert, to make a false report on this mine for use in connection with the defendant’s application to the corporation commissioner.” The record in this behalf shows no more

We do not understand that the defendant in a letter written by him in 1918 to one Theo Smith and offered and received in evidence upon behalf of the prosecution “represented that the mine cleared a net average of $7000.00 per month until 1904.” This letter reads, “A reduction plant installed 1900, was then operated with this plant until 1904. It cleared net over all operating expenses an average of $7000.00 per month.” This statement did not necessarily mean that the mine averaged that amount continuously until it was closed down in 1904, and when read and considered in conjunction with other evidence adduced upon behalf of the prosecution it cannot be said that the statement in question was radically and willfully false. There is testimony in the case of the prosecution to the effect that -the mine produced approximately 200 flasks of quicksilver as the clean-up of March of 1903, which at the defendant’s estimated cost of production, would show a profit of $6,600 for that month. There is also evidence introduced by the prosecution that 192 flasks per month were produced by the mine during all of 1902 and part of 1903, which would

It is true that the defendant in a letter to Theo Smith did state that “twelve years’ time and over $1,000,000.00 in cash were spent by the interests I represented in regaining title to the mine.’’ The defendant admitted that this statement was not correct and in explanation thereof stated that it was a typographical error and in support of this contention cites the obvious and undisputed fact that in the same letter “$20.00 a month’’ was erroneous and should have been written $20,000 a month. If it be conceded that the subject matter of this letter was material to the issue of the defendant’s guilt of the charge for which he was informed against, still assuming the statement in question to be false, that fact alone would not suffice to warrant the jury in finding the defendant guilty as charged and while it might be resorted to in conjunction with the evidence adduced upon the entire case, the defendant was entitled to have it go to the jury free and clear of the many immaterial and prejudicial matters which were erroneously admitted in evidence. In short, we are not prepared to say that the jury, in the face of evidence which tended strongly to support the defendant’s claim that while he was in absolute charge of the mine, the mine did pay on an average of over $7,000 net per month, would have found the defendant guilty as charged merely because of the fact that he had made a misstatement as to the amount of money expended in regaining title to the mine.

[17] Complaint is seriously and properly made of the misconduct of the trial judge occurring during the trial of the case. In the preliminary report of the defendant as receiver of the mine in question was contained the following statement: “During the month of September, 1903, 31 flasks of quicksilver were shipped to Langley-Michaels Company. Referring to the August report, error was made in the last paragraph in stating that no quicksilver was shipped in that month. As a matter of fact 65 flasks were shipped during that month and duly accounted for in the August report under the head of ‘Cash Received $2600.00, being

Frequently throughout the course of the trial, without apparent need, the trial court interrupted the examination of the defendant, when testifying as a witness in his own behalf, to the extent of practically taking the examination of the defendant out of the hands of his counsel, and indulged in an extensive course of examination and cross-examination of his own. This was done despite the objection of the attorney for the defendant, the trial court giving as a reason when overruling one of the objections that “the Court is trying to facilitate the examination. Pie is trying to figure kit from the blackboard, and if he knows I want him to tell the jury, and if he doesn’t know, I want to find out.” Con

[18] There can be no doubt that it is the duty of the trial court, if the exigencies of the occasion require it, to facilitate, by one or more proper interrogatories, the direct and cross-examination of a witness. But for the court to repeatedly take the defendant as a witness out of the hands of his counsel who, as the record before us shows, was apparently competent, conscientious, and expeditious in his conduct of the case, and proceed along an independent and extensive line of examination and cross-examination is not only not commendable but highly irregular and for the sake of due and orderly administration of justice should not be indulged in. Ordinarily the proper course, and the one generally pursued, is to allow the examination by counsel— direct, cross, redirect and recross—to conclude, and then if anything in the judgment of the trial court remains obscure, which may be material for the jury to know, and it seems desirable that an examination of the witness should be further pressed, then, with perfect propriety, the trial court may, and, indeed, should, intervene so that the ends of justice may be subserved. This, however, should be done with care, particularly where the witness is the defendant in the case, lest the jury should, because of the court’s intervention, and because of that fact alone, indulge in adverse inferences and conclusions from the testimony of the witness.

In view of the situation of the evidence in the instant case, considered with reference to the erroneous rulings hereinbefore referred to, and the adverse impressions which the jury undoubtedly received from the court’s intervention in the examination of witnesses in the manner indicated, we are of the opinion that said rulings and intervention, taken

Judgment is reversed.

Lawlor, J., iSeawell, J., Richards, J., and Shenk, J., concurred.

I dissent.

I concur with the conclusions of the majority opinion that the information herein states facts sufficient to constitute a public offense; that the same was properly triable in the superior court of Sacramento County, and that the evidence is legally sufficient to sustain the verdict of conviction. But I do not think that any error was committed at the trial to the substantial prejudice of the defendant. The opinion evidence offered by the defendant to prove that the cost of producing quicksilver from high-grade ore was relatively less than in the case of low-grade ore was, in my opinion, properly excluded, because the witness was not shown to have had any special knowledge or experience in the treatment of the two grades of ore. Moreover, assuming that this ruling was erroneous I do not think that it could have prejudiced the defendant, because any intelligent juror would reason that if the cost of producing quicksilver was $3 per ton of ore, the relative cost of production would be less in the case of high-grade ore which produces more quicksilver per ton, and the same reasoning would apply equally to any other assumed figure as the cost per ton of ore. I do not think that the trial court erred in admitting in evidence, over the objection of the defendant, the minutes of the organization meeting of the Alpha Quicksilver Company, or the report made by the defendant while in charge of the mine as receiver, or the testimony of the witness who examined the mine in 1919. It was defendant’s contention at the trial that he did not mean what he said in a portion of the statement which was charged in the information to be false, and that the falsity of that portion of his statement was solely the product of a typographical error made by the stenographer. The three items of testimony which the majority opinion holds were erroneously admitted had a. legitimate tendency to contradict and rebut this claim of defend

I agree with the majority opinion that the trial judge should have refrained scrupulously from the making of any suggestion to the jurors as to the weight of the evidence or credibility of a witness, either by commenting thereon in the" presence of the jury, or by the manner in which he cross-examined the witness. It appears from the record that the trial judge did in several instances overstep the bounds of propriety, but I am loathe to characterize his action in this respect as misconduct. However, even though entirely inadvertent on his part, it would nevertheless entitle the defendant to a reversal if it operated to his substantial prejudice to an extent which deprived him of a fair trial, but I do not think that such was the case herein. An examination of the entire evidence in the case convinces me that the statements charged in the information here were false and that they were made by the defendant willfully and with a design to deceive the corporation commissioner. Under these circumstances I cannot concur in a reversal of the judgment.

Waste, J., concurred.