People v. George

Defendant W. N. George and others were charged by indictment with the crime of conspiring to obtain money by false pretenses. All of the defendants except Hughes were convicted. Defendant George appeals from the judgment of conviction.

The indictment, shortened by the omission of formal matters and of allegations which are not material to the inquiry upon which we now embark, was in the following language:

“The- said defendants John Dexter Wiley, Belle Wiley, W. N. George, and H. J. Hughes are accused ... of the crime of conspiracy to obtain money and property by false pretenses, a felony committed ... as follows, to-wit; That . . . said defendants . . . did . . . conspire, ... by divers unlawful, false and fraudulent representations and pretenses to obtain the sum of ten thousand dollars . . . from the Great Republic Life Insurance Company, a corporation, „ . . upon the false and fraudulent representation and pretense to be made by the said defendants Belle Wiley and W. N. George to the said . . . company that the said John Dexter Wiley had been drowned and lost his life ... by

falling overboard from a boat into the waters of the Pacific Ocean, . . . and that the said Belle Wiley was entitled to receive said sum . . . from the said : . . company under a policy of insurance covering the life of the said John Dexter Wiley, . . . the said Belle Wiley being then and there the beneficiary named in the said policy of insurance; . . . That thereafter and in the course of the said conspiracy and in furtherance thereof, . . . the company through the said defendant W. N. George, as soliciting agent of said company for a policy of insurance upon his, the said John Dexter Wiley’s life, in the sum of ten thousand dollars, and that thereafter . . . the said John Dexter Wiley received from the said . . . company and the said defendant W. N. George the said policy of insurance upon his, the said John Dexter Wiley’s life, . . . with the said Belle Wiley named therein as beneficiary in the event of the death of the said insured, John Dexter Wiley; that thereafter and in the course of said conspiracy and in furtherance thereof . . . the said defendants John Dexter Wiley and W. N. George caused and induced one Joseph McAfee to agree to permit the . . . defendants ... to allow them ... to use . . . the said Joseph McAfee’s boat known as the “Catalina Flyer’’ for the purpose of making a false, fraudulent and fictitious showing and representation to said . . . company that the said John Dexter Wiley had lost his life by falling overboard from said boat while said boat was cruising in the waters of the Pacific Ocean; . . . that thereafter, and in the course of said conspiracy and in furtherance thereof . . . the . . . defendants . . . procured for the said John Dexter Wiley a hat and a pair of colored spectacles for the use and purpose of fraudulently disguising and changing the appearance of the said John Dexter Wiley to assist the said John Dexter Wiley in getting away undetected from the scene of said false and fraudulent representation of drowning by the said John Dexter Wiley; that thereafter and in the course of the said conspiracy . . . the said defendants secured certain other clothing and wearing apparel of [for( 1) ] the said John Dexter Wiley and caused . . . the said defendants H. J. Hughes and W. N. George to wait at the harbor of San Pedro . . . with the said clothing and an automobile for the purpose of carrying and conveying the said John Dexter Wiley out of the . . . State of California for the

purpose of hiding the identity of the said John Dexter Wiley and for the purpose of assisting the said John Dexter Wiley, Belle Wiley, W. N. George, and H. J. Hughes in effectuating and making the said false and fraudulent claim to the said . . . company that the said John Dexter Wiley had met his death as aforesaid; that thereafter and in the course of the said conspiracy . . . the said defendants John Dexter Wiley and Belle Wiley went upon the said boat of the said Joseph McAfee . . . and that . . . said boat under the command of said Joseph McAfee shipped away ostensibly for the purpose of making a cruise around . . . [the] Island of Catalina; that thereafter and in the course of the said conspiracy, . . . while the said boat was on its said cruise, and at a point adjacent to the shore of said Island of Catalina, . . . the said Belle Wiley did then and there falsely and fraudulently represent and pretend to the said Joseph Mc-Afee and to the passengers on said boat that the said John Dexter Wiley had fallen overboard from said boat; and the said John Dexter Wiley did then and there falsely and fraudulently represent and pretend to the said Joseph Mc-Afee and to the passengers on said boat that he had fallen overboard from said boat; that in truth and in fact the said John Dexter Wiley had not fallen overboard from said boat but in truth and in fact did then and there falsely and fraudulently make the representation that he had fallen overboard from said boat and had immediately thereafter gone through a hatch in the said boat and to a lower deck and portion thereof and there disguised his appearance and hid 'himself; that thereafter and in the course of the said conspiracy ... the said defendants John Dexter Wiley, Belle Wiley and W. N. George caused and procured the said Joseph McAfee and the engineer of said boat to proceed to the city of Avalon, at said island of Catalina, . . . and there put ashore the said John Dexter Wiley from the said boat while the same was anchored in the harbor of said Avalon and wrhile the said John Dexter Wiley was then and there disguised as aforesaid; that thereafter and in the course of said conspiracy . . . the said defendants H. J. Hughes and W. N. George procured the clothes and wearing apparel of the said John Dexter Wiley and procured an automobile and thereafter . . . proceeded to the harbor of San Pedro . . . aforesaid, and there awaited the arrival of the said John

Dexter Wiley to take him out of the . . . state of California for the purpose hereinabove stated. ...”

This pleading was demurred to and the demurrer was overruled. It is now contended that it should have been sustained.

Section 182 of the Penal Code provides, in part: “If two or more persons conspire: ... To cheat and defraud any person of any property, by any means which are in themselves criminal, or to obtain money or property by false pretenses or by false promises with fraudulent intent not to perform such promises; ... . ” they shall be punished in a certain manner. Section 184 of the same enactment reads: “No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object itself, by one or more of the parties to such agreement and the trial of cases of conspiracy may be had in any county in which any such act be done.” These are the provisions which determine the question whether the indictment states a public offense. The specific question presented for our consideration is this: Does the pleading allege the commission of the overt act contemplated by the language of section 1841

It is insisted that in determining this question we may resort with profit to adjudications passing upon the sufficiency of indictments or informations which charge attempts to commit various crimes. It is said that the strength and stature of the present indictment may be measured accurately by the standards furnished by such adjudications, and as introductory to an examination of them appellant quotes the following from a noted text-writer: “Two elements—each distinct from the other, and not commonly operating together, but each in its own separate class of cases, dominate the law of conspiracy. The one is combination, the other attempt. Thus— ... In many circumstances, if two or more combine to do a wrong—whether as the means to something else or as the contemplated end-— such mere combining more endangers or disturbs the community than would the executed wrong accomplished by the single will. This is the central idea in the law of conspiracy. . . . In other circumstances, there is no special evil in the combination, and its indictable quality does not consist in this linking of wills for wrong. Then the thing eontem

Bespondent vigorously assails these views of Mr. Bishop, and we are thus brought to a consideration of some of the basic principles of the law of conspiracy, for if the celebrated author correctly states the law the indictment under which appellant was convicted falls far short of sufficiency. Granting that the quoted text is not obnoxious to the vigorous protest registered by respondent, it is evident that under the law of this state such conspiracies as that with which we have now to deal must fall within the class designated as attempts in the early part of the excerpts which we have culled from the book. If we take the portion of section 182 of the Penal Code which is set forth above, and add to it the terms of section 184, it is obvious, if also we concede that Mr. Bishop is right, that in this jurisdiction there is no “ special evil”—no criminalty—“in the combination.” If- he is right, the test is here met that “the thing contemplated must be such as would be indictable if performed by one.” Also, then, “the conspiracy is punishable simply because it is an attempt,” and the indictment must be viewed in the light of the law touching attempts. " The eighth edition of Bishop’s New Criminal Law, from which the greater part of the above quotations is made, was published in 1893. The ninth edition of the same work appeared in 1923—thirty years later—and the text of the eighth is repeated verbatim in it.

[1] It may be premised without the citation of authority that under the English law, from which, of course, our law of conspiracy is descended, the crime mentioned lay in the combination—in the mere meeting of the minds of the conspirators in an intent to embark upon an illicit enterprise. The requirement that an overt act must be committed in furtherance of a conspiracy before criminality will attach is an American innovation in the law of criminal conspiracy. Statutes inaugurating the innovation have been enacted by Congress and by the legislatures of several of the states, including our own. We are therefore to inquire what was the basic object of the departure from the principles of the English law upon the subject, and of the law of the several states in which those principles still obtain.

In order to lay a further foundation for the ascertainment of this basic object, and, further, in order to elucidate more fully certain general observations which we have made above, it is necessary to examine a little more closely into some features of the law of attempts as it exists in' tho jurisprudence of this state. This purpose will be sufficiently accomplished by the making of quotations from several cases. “Between preparation for the attempt [to commit a crime] and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.- To illustrate: A party may pur

There are a few decided cases in which the courts, with a greater or less degree of explicitness and precision, have yielded assent to views similar 1o those of Mr. Bishop, and they have occasionally cited him. In one case the information failed to allege an overt act amounting to an attempt to commit a crime. In passing upon the sufficiency of the pleading the court said: “An ‘overt act’ is one done to carry out the intent, and it must be such as would naturally effect that result. Whether a certain act was in pursuance of the conspiracy depends entirely upon whether the parties conspired to accomplish their purpose by the means alleged. Where a' conspiracy to commit a crime is established, any act in pursuance of the conspiracy and to effect its object is sufficient to give the court jurisdiction in the county where the act was committed. It is said that a conspiracy to commit a particular crime is essentially of the nature of an attempt to commit the crime.” Portions of the text which we have above set forth from Mr. Bishop’s work were then quoted, along with statements substantially to the same effect from Wharton’s Criminal Law. The court then said further: “An attempt to commit a crime can only be made under circumstances»which, had the attempt succeeded, would have constituted the substantive offense” (Williams v. State, 16 Okl. Cr. 217 [ 182 Pac. 718 ]). In another case the following appears: “It is well settled that the unlawful agreement is the gist of the conspiracy. The unlawful agreement, however, does not become the basis of an indictable offense till one of the parties to such agreement takes a step in furtherance of the execution of it. It is therefore essential, where there is a charge of conspiracy which requires an overt act to be done in execution of it, in order to make the conspiracy indictable, that such overt act should be set out in the indictment. It is not necessary to constitute the offense that it should appear that the object of the conspiracy was attained; a step taken in that direction by one of the parties to the agreement is sufficient. An indictable conspiracy is in its nature an attempt to commit an offense. 2 Bish. on Cr. Law (5th ed.), par. 191.” (State v. Hemmendinger, 100 N.

We doubt whether- State v. Hemmendinger, supra, states the law of New Jersey upon the question now under discussion, although we shall not attempt here specifically to resolve the doubt, but shall leave the question to the tribunals of that state, where, of course, it belongs. Certainly, earlier views of the courts of the jurisdiction, expressed in opinions which are not noticed in State v. Hemmendinger, are at war with the attitude assumed in that case. The following dictum appears in an early case: 11 [An] overt

At least one decision of the courts of New York casts some light upon the question which now engrosses our attention. The case (People v. Miles, 123 App. Div. 862 [ 108 N. Y. Supp. 510 ], affirmed 192 N. Y. 541 [ 84 N.

By far the greater body of the law upon the question now before us is to be found in the decisions of the United States courts. As already hinted, it will be seen that their trend is not in accord with the general expressions contained in the opinions in United States v. McLaughlin, supra, and in United States v. Éachmü, supra. In a number of the federal cases, without particular reasons being given for the result, charges of the commission of overt acts have been held to be sufficient where, apparently in some instances, certainly in others, the acts would have been nothing more than acts of preparation under the law of criminal attempts. Those cases are United States v. Sanche, 7 Fed. 715 ; Daly v. United States, 170 Fed. 321 [ 95 C. C. A. 107 ]; Donaldson v. United States, 208 Fed. 4 [ 125 C. C. A. 316 ]; United States v. Burke, 218 Fed. 83 ; Witte v. Shelton, 240 Fed. 265 [ 153 C. C. A. 191 ]; Gretsch v. United States, 242 Fed. 897 [ 155 C. C. A. 485 ], There are also, however, cases in which the courts have gone further than merely to uphold charges of that nature. The first of these, so far as our research has enabled us to discover, was decided as early as 1873. The court concluded its opinion thus, italics being ours: “If, then, an indictment correctly charges an unlawful combination and agreement as actually made, and, in addition, describes any act by any one of the parties to the unlawful agreement, as an act intended to be relied on to show the agreement in operation, it is sufficient, although, upon the face of the indictment, it does not appear in what manner the act described would tend to effect the object of the conspiracy. It is sufficient, if the act be so described as to apprise the defendant what act is intended to be given in evidence as tending to show that the unlawful agreement was put in operation, without its being made to appear to the court, upon the face of the indictment, that the act mentioned is necessarily calculated to effect the object of the unlawful combination charged. It is not the case of an attempt to commit crime. The crime is committed when the combination is made, and the act of one of the conspirators is not required by the statute to show the intent. That is inferred from the unlawful act of combining to defraud, or to commit an offense, but the object of requiring

We have now given the result of our research among the adjudications of outsidé jurisdictions which touch upon the question here under scrutiny. If we turn to the opinions of our own courts we find nothing which materially aids us in our quest. In People v. Daniels, 105 Cal. 262 [ 38 Pac. 720 ], it happened that the overt act alleged and proved amounted to an attempt to commit the crime which was the object of the conspiracy. People v. Compton, 123 Cal. 403 [ 56 Pac. 44 ], is not a conspiracy ease. Both People v. Johnson, 22 Cal. App. 362 [ 134 Pac. 339 ], and People v. Cory, 26 Cal. App. 735 [ 148 Pac. 532 ], relate to phases of the law concerning overt acts in conspiracy eases, but neither of them touches the present question. In People v. Beck, 60 Cal. App. 417 [ 213 Pac. 61 ], the overt acts alleged

It becomes material now to examine the statutes of other jurisdictions making necessary the commission of overt acts in conspiracy cases before criminality will attach, in connection with section 184 of our Penal Code. The latter enactment, it will be remembered, provides: “No agreement amounts to a conspiracy, unless some act, beside such agreement, be done ... to effect the object thereof ...” The statute of Oklahoma is to the effect that “the crime of conspiracy to commit a felony or misdemeanor is not complete ‘unless some act besides such agreement be done to effect the object thereof ... ' ” (Williams v. State, supra). The New Jersey enactment provides, in part, that “no agreement to commit any offense other than [certain designated ones] shall be deemed a conspiracy unless some act in execution of such agreement be done to effect the object thereof ...” (Wood v. State, 47 N. J. L. 180 ). The cognate section of the Penal Code of New York is to this effect: “No agreement except to commit [certain specified crimes] amounts to a conspiracy, unless some act besides such agreement be done to effect the object thereof . . . ” (People v. Miles, supra). The enactment upon which most of the decisions of the United States courts are based, although some of them relate to special statutes concerning the law of conspiracy, reads, in part: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States . . . and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable . . . ” (Rev. Stats. U. S., sec. 5440). Two of these foreign enactments, those of Oklahoma and New York, are practically identical with section 184 of our Penal Code. It requires no extended examination or argument to justify the assertion that the other two, those of New Jersey and the

[2] It is plainly apparent from the list of cases we have spread upon the foregoing pages that the weight of authority is to the effect that, in pleading an overt act under the law of conspiracy, an information or indictment need not aver an attempt to commit the crime which is the object of the conspiracy and that the text of Mr. Bishop, and perhaps of other law-writers, to the contrary is unjustified and incorrect. Does the better reason lie in the same direction ? [3] Before proceeding to a line of argument which to our minds positively demonstrates the necessity of an affirmative answer to the question, we shall pause to consider the language of section 184 of the Penal Code, which seems to lead to the same end. That enactment, with a resort to italics, provides that no agreement “amounts to a conspiracy, unless some act, beside such agreement” be done to effect the object of the agreement. With these words before us, it seems extremely doubtful that the “some act” required by the law to stamp the agreement with criminality must be an attempt to commit the offense contemplated by the conspirators. The overt element of the crime, in so far as it is an element therein, is not to be merely “some” act, but it must be, as well, an act “beside” the agreement. Does not this concatenation of words indicate a legislative intent merely to distinguish, or to draw a line, between the mental activity evident in the meeting of the minds of the conspirators and the first outward manifestation of an intent to put into operation their concord upon the illicit purpose of the conspiracy—their first “act”? The fact that the overt act must tend to “effect the object” of the agreement does not interfere with an affirmative answrer. Every act of the conspirators in and about the subject matter of the conspiracy, even an act which under the law of criminal attempts would be but an act of preparation, must in some degree tend to effectuate the object of the illicit enterprise. In truth, the meeting of the minds of the conspirators, even if strictly not an act, tends toward the consummation of the unlawful purpose. It is the first step, the first movement, taking both

We come now to what we deem a controlling and conclusive consideration in the solution of the question to which we have given such extended attention. If the position of appellant, based upon the text of Mr. Bishop, be a tenable one the law of conspiracy becomes a dead letter, as an effective instrumentality for the punishment, as conspirators, of those who engage in unlawful combinations. This is a startling statement. We must at once explain its meaning and establish its truth. [4] It is evident that under the terms of section 184 of the Penal Code the agreement or combination is the gist of a criminal conspiracy. The negative mandate of the section, if we may employ a contradiction of terms, that “no agreement amounts to a conspiracy” unless an overt act be performed in furtherance of it, must surely, when an overt act is performed, resolve itself into the affirmative that the agreement thereupon amounts to a conspiracy. This view is in accord with the law in the jurisdictions generally in which the performance of an overt act is necessary to fasten criminality upon those who conspire to consummate a forbidden purpose. At common law the combination was the gist of the conspiracy. Under the authorities the situation is not changed by statutes requiring the performance of an overt act in order to complete the crime. The agreement is still the gist of the offense. The decisions of the United States courts upon this particular point, a few of which are among those cited above, but many more of which are not cited, are uniform in their effect. With the adoption of appellant’s view all this is changed. It is not too much to say, as we have already said,

[5] We are therefore satisfied that the indictment before us is amply sufficient in the face of the attack upon it with which we have dealt. Many “acts” are charged in it, following the allegation that they were done after the illicit combination “and in the course of said conspiracy and in furtherance thereof.” These acts are, in part, at least, the taking out of the insurance policy; the procuring of the boat, the “Catalina Flyer,” from McAfee; the procuring of the garb with which to disguise Wiley; and the embarkation upon the “Catalina Flyer.” We are satisfied that these allegations, taken together, and without pointing to any one act which is alleged, as distinguished from the remainder, meet completely the requirements of section 184 of the Penal Code.

[6] It is contended by appellant that the indictment is uncertain in that it cannot be ascertained therefrom whether the defendants were charged with a conspiracy to commit the crime denounced by section 532 of the Penal Code, or to commit the crime punishable under section 549 of , that enactment. The demurrer to the indictment presented only the general ground. It is therefore extremely doubtful whether the point now urged is properly before us, but we do not decide that particular question. The penalties pre

[7] It is contended that at the trial there was no evidence of the formation of the conspiracy. On the contrary, however, the evidence of the conspiracy was unusually full and complete. It is often difficult to make proof of the formation of the unlawful combination in conspiracy cases, but that difficulty was not experienced in any marked degree in the present instance. There was ample evidence from which the jury was justified in finding that the following was the sordid story of the unusual and bizarre crime charged in the indictment: Appellant, introducing himself under the assumed name of Spear, opened negotiations with McAfee for the use of the “Catalina Flyer” and for the services of McAfee himself, who was the captain of the boat, in the consummation of the illicit enterprise. The pretended Spear, after a preliminary and introductory exchange of remarks, asked the captain if he desired to make two thousand dollars easy money. The skipper inquired how he could enrich himself to that extent. Appellant then said that he was connected with an insurance company, that he had a party who was insured and that, to quote McAfee,

[8] It is contended that the trial court erred in giving an instruction to the jury to the effect that the defendants were to be found guilty if the jury was satisfied beyond a reasonable doubt that the illicit combination was formed, for the reason that the particular instruction did not inform the jury as to the necessity of proof of an overt act. There are two answers to this objection: 1. Other instructions which were given by the court properly covered the law as to overt acts; 2. The uncontradicted evidence was so complete upon the subject of overt acts that the jury could not have found that no overt act was committed.

Various other points are made by appellant. They are, however, answered by what we have already said, or they fall of their own weight. It is particularly to be noted that the error of Mr. Bishop, doubtless justifiably concurred in by appellant’s counsel, runs through and colors most of the questions presented upon the appeal.

Judgment and order affirmed.

Finlayson, P. J., and Craig, J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 27, 1925.