People v. Gilliam

Convicted of six counts of grand theft (Pen. Code, §§ 484, 487, subd. 1) defendant appeals from the judgment and relies upon the sole claim of insufficiency of the evidence to support the verdict.

The victims of defendant’s false pretenses were incredibly credulous and greedy, but that does not absolve defendant from guilt. On the civil side of the law of fraud it is said: “If the conduct of the plaintiff in the light of his own intelligence and information was manifestly unreasonable, however, he will be denied a recovery. . . . ‘He may not put faith in representations which are preposterous, or which are shown by facts within his observation to be so patently and obviously false that he must have closed his eyes to avoid discovery of the truth. . . .’ (Prosser, Torts, 749.)” (Seeger v. Odell, 18 Cal.2d 409 , 415 [ 115 P.2d 977 , 136 A.L.R. 1291 ].) This rule (seldom applied) is tempered by the further consideration that: “Exceptionally gullible or ignorant people have been permitted to recover from defendants who took advantage of them in circumstances where persons of normal intelligence would not have been misled. . . . ‘No rogue should enjoy his ill-gotten plunder for the simple reason that his victim is by chance a fool. ’ ” (Seeger v. Odell, supra.) On the criminal side it is recognized that “ [t]he guilty party is prosecuted in the interest of the people of the state, and not in the interest of the party defrauded. ” (People v. Skidmore, 123 Cal. 267 , 268 [ 55 P. 984 ].) Foolish reliance by the victim of a preposterous fraud does not require that one who has violated the statute should go free on that account. “In determining in cases like the present whether the defrauded party really believed and acted upon the representations of the accused it is proper to consider whether they were of a character to probably induce belief in his mind or in the mind of any person of ordinary intelligence; but the law as it is at this day

“I am cooperating fully with those who have already invested in the venture. I have given several of them 60-day options in their contracts. If they are not satisfied with the profits at that time, I will return their investments in full. As you know, Nevada gambling is the most profitable business in operation, but it takes large sums of money to finance it. It is seldom that you will be offered an opportunity to invest in a venture that is as sound and still as profitable as this one.

“If after consideration, you are still interested in investing with us, please let me know as quickly as possible, giving me definite details as to the amount you wish to invest, and whether or not you wish the 60-day option. I will have your contract drawn up and will then contact you. Sincerely yours, Y. Surrocco.” When the money was forthcoming a contract, drawn by defendant, was forwarded to the “investor.” These contracts differed somewhat, but in the main followed the form furnished to Barton; so far as pertinent it reads: “This agreement made the 3rd day of September, 1954, between Surrocco Enterprises . . . the party of the first part, and M. Y. Barton . . . the party of the second part, witnesseth: That the said party of the first part, . . . hereby covenants with the said party of the second part that the said party of the first part will deliver to the said party of the second part at his home in said City and County of

“It is further agreed that this contract may be cancelled by either the said party of the second part or by the said party of the first part upon 30 days notice to the other interested party, at which time the said party of the first part will deliver to the said party of the second part the balance due as agreed upon in this contract.

“Included also in this contract is an option to be exercised on the 60th day after the signing of this contract. If the said party of the second part so desires he may request and receive from the said party of the first part the entire amount invested. However, should said party of the second part desire to leave his investment with said party of the first part, then after the sixtieth day it shall automatically revert to the first, second and third paragraphs of this contract. . .

It is claimed that these documents, being promissory in form, could not constitute a basis for a charge of false pretenses. It is settled however, that a promise made with an existing intent not to perform may constitute a false pretense within the grand theft statute. (People v. Ashley, 42 Cal.2d 246 , 262-265 [ 267 P.2d 271 ] ; People v. Weitz, 42 Cal.2d 338 , 343 [ 267 P.2d 295 ].) The jurors in this case were justified in inferring that defendant at the time of making them intended not to perform his promises.

He operated under an assumed name and through a post office box without disclosure of his true name or his business or residential address. His advertisement offered to “assure by contract 30% monthly profit on your investment from $300 to $300,000.” Thirty per cent of $300,000 is $90,000. The promise was to pay that much each month. Defendant had not the capacity to do this and hence it is an inevitable inference that he did not intend to do so. If that is true of the maximum amount, it would seem also true of the lesser sums, such as Barton’s $300 investment.

Defendant’s plan, so he testified, was to use the investors’ money to play roulette in Las Vegas, not to run a gambling establishment but to play against the house. He claimed to have a tried system that would yield the promised return. Barton was told that the investment would be returned in case the venture failed. His contract contained both a 30-day cancellation clause and a like 60-day termination option. On cross-examination defendant testified that in each instance he intended to perform “if the money were not lost,

The second victim was Robinson, who turned over to defendant $1,200 on the strength of the advertisement, letter and contract. He had no personal interview with defendant. All of the transactions under discussion followed the same general pattern and thus each shed light upon the others.

That defendant did not intend to make good on his promises is further evidenced by the fact that he continued to obtain money from Furman after he had notified Barton and Robinson that their contracts were cancelled because “ [d]ue to circumstances beyond our control we are forced to discontinue operation of the Nevada project in which you were interested.” On the witness stand he claimed that all the money then had been lost. Assuming that he was using the various investors’ funds in Las Vegas gambling as he claimed, it was not true that all the moneys had been lost because he was in possession of funds received from Furman. He told Barton that ‘ ‘ [y] ou will remeve from us the balence due as also agreed upon in the contract with reference to this cancellation.” But instead of keeping his promise he appropriated all the funds to his own exclusive use. Neither Barton nor Robinson ever heard from defendant again. Their letters and telephone calls were unanswered until Robinson notified defendant that he would contact the police, whereupon he received an unsigned letter reading as follows: “Your recent letter to Vincent Surrocco Enterprises was forwarded to them at their new mailing address. All further correspondence should be mailed to them at General Delivery, Las Vegas, Nevada.”

The Furman dealings cast a revealing light upon the whole series of transactions and upon defendant’s underly

Each letter that Furman wrote to defendant spoke of a desire and an intention to make further investments with defendant and in fact, with one exception, each of his four investments was larger than the one preceding, $560, $2,440, $2,000 and $5,000. In discussing a proposed new investment of $7,000 (represented by the $2,000 and $5,000 items) Fur-man expressed satisfaction with investment in Las Vegas gambling, sought and received assurance that his money would be so invested; he was also promised that it would be secured by an interest in a Hollywood night club located on Sunset Strip. At the time this assurance was given defendant, according to his own testimony, had lost all funds previously forwarded by Furman but had not disclosed the fact to him. After defendant received the $2,000 and before the $5,000 came through he sent to Furman two cheeks for $55 and $20, respectively which appeared to be dividend checks. He told investigating officer Knowles that they were dividend checks but he could not say on what amount. Fur-man’s $2,000 and $5,000 remittances were both deposited in defendant’s personal bank account and he never sent to Furman a contract covering either sum.

Defendant claimed in his talk with Knowles that Furman’s money had been lost in Nevada gambling. At the trial he gave a different version. He there testified that the $2,000 and the $5,000 were used in purchase of a restaurant known as “La Madelon”; that that deal was rescinded and Fur-man’s money switched to the purchase of a Santa Monica restaurant known as “Adam’s Rib”; also that that restaurant was owned by a new corporation named “Gilliam Enterprises” and that Furman was owner of 50 per cent of the stock. Furman never heard of “La Madelon” by name. He thought at all times that his money was invested in part-ownership of a Nevada gambling establishment. He never heard of “Adam’s Rib” or of “Gilliam Enterprises.”

On February 8, 1955, defendant advised Furman that “ [d]ue to unforseen circumstances in Nevada our gambling enterprise has run into extreme financial difficulties” and that “otherwise unnecessary risks” would have to be taken. This was followed by a communication of the 22d to the effect that “our Nevada gambling venture has been forced to a financial halt due to extreme financial setbacks recently

The conclusion that defendant deliberately and consistently defrauded Furman and that he never had any intention of performing any of the promises made to him or to the other victims is well fortified by the evidence.

The proof also sustains a finding of larceny by trick and device. (People v. Bartges, 126 Cal.App.2d 763 , 770 [ 273 P.2d 49 ]; People v. Mason, 86 Cal.App.2d 445 , 450 [ 195 P.2d 60 ] ; People v. Owens, 117 Cal.App.2d 121 , 123 [ 255 P.2d 114 ] ; People v. Sears, 124 Cal.App.2d 839 , 853 [ 269 P.2d 683 ]; People v. Chamberlmn, 96 Cal.App.2d 178 , 182 [ 214 P.2d 600 ].)

Defendant’s attempted explanations of the matters above mentioned, and others equally damaging, were rejected by the jury and by the trial judge who denied defendant’s application for probation.

The judgment is affirmed.

Moore, P. J., and Fox, J., concurred.