People v. Burton

Defendants Burton, Martin and Sugarman were prosecuted upon an indictment containing nine counts, which may be summarized as follows:

Count 1. Burton, Martin and Sugarman were charged with conspiracy to commit grand theft of $15,550.59 from the Phoenix Assurance Company on or about March 1, 1946.

Count 2. Burton, Martin and Sugarman were charged with grand theft of said amount from said company on or about said date.

Count 3. Burton and Martin were charged with conspiracy to commit grand theft of $12,827.06 from the same company on or about October 25, 1946.

Count 4. Burton and Martin were charged with grand theft of a like amount from the same company on or about the same date.

Count 5. Burton and Martin were charged with conspiracy to commit grand theft of $6,716.57 from St. Paul Fire and Marine Insurance Company on or about the same date.

Count 6. Burton and Martin were charged with grand theft of said amount from the same company on or about the same date.

Count 7. Burton and Martin were charged with conspiracy to commit grand theft of $2,029.61 from Connecticut Insurance Company on or about February 19,1947.

Count 8. Burton and Martin were charged with grand theft of said amount from that company on or about the same date.

Count 9. Sugarman was charged with violation of section 556 of the Insurance Code on or about February 28, 1946.

It thus appears that counts one and two alone pertain to all of the three defendants, counts three to eight, inclusive, pertain to Burton and Martin, and count nine charges defendant Sugarman alone.

Burton filed a written motion to set aside the indictment upon the ground that he had been committed without reasonable probable cause. Sugarman filed a motion to quash the indictment on the grounds that it was void and that the court was without jurisdiction to proceed in that there was no evidence before the grand jury tending to support the charge in said indictment against him. Martin filed a like motion to set aside a like indictment on the ground that it was void in that the court was without jurisdiction to proceed because there was no evidence before the grand jury tending to support the charges against him and on the further ground that the indictment was not found, endorsed and presented as prescribed in section 940 of the Penal Code. After argument the motions were submitted and denied by the court. Separate demurrers were thereafter filed on behalf of each defendant and were denied. Thereupon each of the defendants entered pleas of

Subsequent to the filing of the clerk’s and reporter’s transcript in this court Burton was accidentally killed, and upon suggestion of this fact to the court by means of stipulation of counsel for said defendant and for respondent, his appeal was dismissed as moot.

We will endeavor to summarize in narrative form the voluminous record of over 6,000 pages as it pertains to both of the remaining defendants. Following such summary we will consider separately the appeal of defendant Martin and the appeal of defendant Sugarman.

On February 2, 1946, Burton and Mary Burton were the owners of a,n office building known as the Don Burton Building in the city of Stockton. Burton was also the owner and operator of a shoe store situated on the ground floor of said building. He carried two policies of fire insurance with the Phoenix Assurance Company, one policy covering the fire insurance on the building and a second policy covering the stock or merchandise located in the ground floor shoe store. He also carried a policy of fire insurance with the St. Paul Fire and Marine Insurance Company, covering furniture, fixtures and equipment in the building. A further policy of insurance known as use and occupancy or business interruption policy was carried with the Connecticut Fire Insurance Company.

At approximately the hour of 3 :45 o’clock p. m., on Satur

Employees of the shoe store testified that some smoke was noticed coming through the ventilators which was the reason for calling the fire department, that the smoke caused no discomfort to the employees or to the customers then in the store and that business went on as usual. These employees further testified that they saw no soot or other damage to the shoes on display nor did they observe any of the merchandise or show cases being cleaned. They did not know of any merchandise which was exchanged or returned on account

On the morning after the fire Martin was called by a Sacramento insurance agent and asked to proceed to Stockton with reference to the fire loss. The insurance agent also made an appointment for Martin and Burton, and the two drove to Stockton that afternoon. At that time Martin had not been definitely employed by the insurance companies. This fact was made known to Burton, who also was told by Martin that he would go to San Francisco the following day and personally see the insurance companies in an attempt to secure the authority to handle the losses. Martin then drove to San Francisco with advance adjuster’s reports and delivered two of them to a Mr. English, manager of the Phoenix Assurance Company. He informed said manager that there had been a very great loss and requested the aid of a salvage man. He

The following day Sugarman drove from San Francisco to Sacramento and met Martin in front of the Burton Shoe Store in that city at about 11 o ’clock in the morning. Martin introduced him to Burton. The testimony is contradictory as to the conversation between these defendants and an employee of Burton, a Mr. Saunders. Martin testified that Burton objected to having his stock taken over for salvage while Sugarman testified that he was left alone with Saunders while Martin and Burton held a private conversation. Sugar-man then requested that inventory figures, in addition to what was then shown him, be placed at his disposal and directed

During February, 1946, Burton, acting upon the suggestion of Saunders, hired one Harry Ex, an adjuster, to represent him. Ex and Sugarman had known one another and had been together in business deals for 20 years. In 1941, they had been associated in the Pacific Trading Company, and a Mr. Bartlett, who had been an adjuster for Sugarman Brothers in Los Angeles had known Ex for 10 years. They had shared offices together and during that time both sent remittances to Sugarman Brothers in San Francisco. Martin, who had full knowledge of the activities of Ex, was asked by Burton to explain the functions of Ex to one Knittle, the income tax expert for Burton, and to a Miss Brudigan, head bookkeeper for Burton. Martin later explained to Miss Brudigan that the large fee paid by Burton to Ex was none of his concern as it was entirely between Burton and Ex. Upon arriving in Sacramento Ex advised Burton not to let Sugarman know he was on the case and submitted a contract for his employment, which Burton signed. The manager of the Stockton store prepared a detailed inventory for Ex and thereafter he and Burton had three or four telephone conversations in which Ex advised Burton how to handle his claim. Ex called

During the month of February, 1946, Burton engaged one Wolters, who gave Martin an estimate of the painting job. Wolters was told by Martin to proceed with the painting of the basement, the shoe store and the halls and stairway. Wolters thereafter repainted the shoe store, necessitating it being closed for one day. He also painted the basement, two storage rooms, the back stairs, all of the corridors, including ceiling, walls and woodwork on every floor of the building. He also painted some 36 offices in the building. His statement in the sum of $9,610.60 was mailed to defendant Don Burton at Sacramento, together with a blank billhead. Thereafter a Mrs. O’Neil, a stenographer for Martin in his Sacramento office, and at his direction filled in the blank billhead raising the amount to $14,952.51. Burton paid Wolters from time ■to time during the course of the painting three checks in the sum of $2,500 each, and a final check in the sum of $2,110.60, making a total of $9,610.60. Burton, however, received the sum of $14,952.51 from the Phoenix Company by reason of Martin’s acts in raising the painting bill.

On October 1, 1946, Martin went to Stockton and handed Wolters a cheek in the sum of $1,957 which he asked Wolters to cash and return the proceeds to him. Martin requested Wolters to show this check on his books and also told him that he would take care of any increase in Wolter’s income taxes. Martin also accompanied Sugarman and Sugarman’s son to see Wolters in 1947 when Wolters was told to keep quiet and not talk to anyone. On February 4, 1946, Martin prepared the adjuster’s report to the St. Paul Company, wherein he estimated a 20 per cent loss to the insurance company. The following month he forwarded to the company a report in which he raised his estimate of loss from 20 to 55 per cent. In this report Martin mentioned that the immense volume of smoke “permeated not only the involved store but also the entire office building, making it necessary to immediately close down the store and rush the customers out . . . the oily smoke turned the walls and ceiling to a deep brown and badly damaged the rugs and draperies and counters and show cases. ’ ’

On July 20, 1946, a further letter was forwarded by Martin to the St. Paul Company advising them that the estimate of loss should be raised from 55 per cent to 85 per cent. On

Appeal op Dependant Martin

Martin first contends that there is no substantial evidence to support the finding that he acted dishonestly. This contention is amplified by the argument that had the prosecution been able to establish that there had been no fire at all then

Although defendant takes up separately the evidence regarding each of counts one to eight inclusive it would appear unnecessary to discuss each at length herein since the applicable rules attach with equal propriety to each count.

The record herein presents the usual conditions in cases where the evidence on the part of the prosecution is circumstantial and is contradicted by direct evidence on the part of defendant. However, “ [t]he law makes no distinction between direct and circumstantial evidence . . . [tjherefore if the circumstances relied upon by the prosecution reasonably justify an inference of guilt, but an inference of innocence might also reasonably have been drawn, it was for the jury, as between these two inferences, to choose, and unless it is obvious that the evidence does not warrant the inference of guilt adopted by the jury, this court is powerless to interfere.” (People v. Rubio, 75 Cal.App.2d 697 , 707 [ 171 P.2d 737 ].)

In proving the conspiracy herein charged it was not necessary for the State to prove that the parties actually came together, mutually discussed their common design, and after reaching a formal agreement set out upon their previously agreed course of conduct. The extent of the assent of minds which are involved in a conspiracy may be, and from the secrecy of the crime usually must be, inferred by the jury from the proofs of the facts and circumstances which, when taken together, apparently indicate that they are parts to the same complete whole. (People v. Jones, 136 Cal.App. 722 [ 29 P.2d 902 ]; People v. Benenato, 77 Cal.App.2d 350 [ 175 P.2d 296 ].)

The evidence as previously summarized amply supports the rule as stated. Although what we have heretofore said in that regard applies equally to each count yet by reason of the strenuous attack by appellant upon the evidence relied upon by the prosecution in support of counts seven and eight further discussion of this question would appear necessary.

Under such circumstances we cannot say that the jury was not reasonably justified in drawing an inference of guilt from the evidence. The right to draw proper inferences is one of the functions of the jury and if the inference so drawn does not do violence to reason this court will not interfere. (People v. Latona, 2 Cal.2d 714 [ 43 P.2d 260 ].)

It likewise appears immaterial whether or not the actual policies of insurance were introduced into evidence by the State. As stated, agents of the companies testified at length and were cross-examined by defendant’s counsel. No objection was made to their testimony on any ground. While the fact of insurance was an essential element of the People’s case the actual policy was not. The existence thereof was shown by the testimony of the agents as well as a general statement of the contents. In view of this showing in the record and defendant’s failure to object we cannot say that prejudicial error resulted from the failure of the State to introduce the policies in evidence.

Appellant next asserts that the evidence is insufficient to show venue in San Joaquin County for the prosecution of any of the eight offenses charged against him. Appellant premises his contention on the ground that the acts requisite to the consummation of the various offenses were: (1) preparation of the proofs of loss, (2) execution of the proofs of loss, (3) mailing proofs of loss to the companies, (4) securing drafts from the insurance companies, and (5) accepting payment from the insurance companies, and that none of them were committed within San Joaquin County. Section 182 of the Penal Code provides in part that “[a] 11 cases of conspiracy may be prosecuted and tried in the superior court of any county in which any overt act tending to effect such conspiracy shall be done.!’ Additionally Penal Code, section 781, provides that “ [w]hen a public offense is committed in part in one county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.” Under these provisions it is sufficient if some act or effect thereof occurred in San Joaquin County which act or effect is requisite to the completion of the offense although not essential to its commission. (People v. Megladdery, 40 Cal.App.2d 748 [ 106 P.2d 84 ]; Loser v. Superior Court, supra.) That such acts or effects thereof did occur in San Joaquin County is apparent from the foregoing statement of the evidence.

Appellant next contends that portions of the evidence admitted by the court were too remote to be admissible as to him and that the court erred in not ruling as to which of the joint defendants the evidence so admitted was applicable. Additionally appellant asserts that the court erred in excluding certain evidence proffered by him. The record, which consists of upwards of 6,000 pages of testimony is obviously too long to permit this court to set forth the numerous instances of asserted error in this regard contained therein and in part referred to in appellant’s brief. Nevertheless, the record has been carefully examined and while it is true that some of the specifications appear to be meritorious we see no error of such a prejudicial nature as to entitle the defendant to a reversal of the judgment in the light of article VI, section 4 ½] of the Constitution. Particularly is this true in view of the ample evidence in support of the judgment contained in the record.

Appellant next contends that the court unduly restricted the cross-examination of the witness Wolters, allegedly to the prejudice of appellant. Again, the bulk of the record pertaining to the direct and cross-examination of the witness prescribes against setting forth the substance thereof. The rule is well established that the trial court is vested with discretionary power over cross-examination. When the evidence of a defendant’s guilt is clear and convincing as it is in this case it cannot be said that prejudicial error resulted from the attacked restriction of defendant’s cross-examination of such witness. (People v. Carson, 74 Cal.App.2d 834 [ 169 P.2d 677 ].) We are satisfied that in view of the record herein even if it be conceded that the trial court abused its discretion

Appellant next urges error in the instruction given by the court in regard to a special verdict submitted to the jury upon the question of the jurisdiction (venue) of the court. Complaint is made to the language employed in regard thereto as well as to the alleged prejudicial effect thereof. Appellant’s attack upon the sufficiency of the evidence to establish jurisdiction (venue) in San Joaquin County has been discussed above and decided against appellant as has his attack upon the sufficiency of the evidence to sustain the judgment. Thus, even if it be conceded that the instructions were improper we are unable to conclude that the jury was misled or its verdict the result of a misconception of the law. (See People v. Honeycutt, 29 Cal.2d 52 [ 172 P.2d 698 ]; Const., art. VI, § 4 ½.)

Appellant further urges that the failure of the court to give an unrequested instruction as to what constitutes an accomplice and the necessity for corroboration of the testimony of an accomplice constitutes reversible error. Appellant argues that Wolters, who was retained by appellant to do the painting after the fire, was an accomplice in the commission of the crimes of which appellants stand convicted. While certain portions of the record substantiate this contention it does not follow that the failure of the court to give an instruction upon its own motion constituted reversible error. It is apparent from the statement of the evidence, supra, that there is sufficient evidence to support the judgment without considering the testimony of the alleged accomplice. Under such circumstances the failure of the court to give an instruction upon its own motion does not constitute reversible error. (See People v. Warren, 16 Cal.2d 103 [ 104 P.2d 1024 ].)

Appellant Martin’s last contention, which is not joined in by appellant Sugarman, is that Mr. Watson, the district attorney, was guilty of prejudicial misconduct in “demanding a bench warrant for the arrest of prosecution witness Harry Ex,” in the presence of the jury. All that the record shows that the district attorney did in this connection was to request leave to file a subpoena which had been served on Harry Ex, and to state, on inquiry by attorney for defendant Sugarman whether said witness was to be there, that as far as he knew he was not there. Thereupon the court stated: “Very well, you may take a bench warrant.” At

We are unable to say that the conduct of the district attorney in the presence of the jury did or could result in a miscarriage of justice. On the contrary, if, as appellant contends, the evidence which he brought out shows that the district attorney did not act in good faith, the inferences to be drawn from such showing would seem to be unfavorable to the prosecution rather than to the defendants.

In view .of the voluminous record which discloses ample evidence of the guilt of appellant we are unable to perceive that the misconduct of the district attorney, if it was such, had a material effect upon the determination of the jury and therefore we are constrained to hold that it was not of such a prejudicial nature as to lead to the conclusion that a miscarriage of justice has resulted therefrom. (See People v. Macias, 77 Cal.App.2d 71 [ 174 P.2d 895 ].)

Appellant Sugarman raises several points on his appeal, many of which are substantially the same as those raised by appellant Martin and the disposition of those points in the Martin appeal likewise governs the disposition on this appeal. Consequently, mention will only be made herein of those points raised by Sugarman which were not raised by Martin.

This appellant first contends that the evidence is insufficient to support the judgment appealed from. While this point was not specifically considered in the Martin appeal as applied to this appellant, nevertheless, the law enunciated therein is equally .applicable and it is our judgment that the detailed summary of the evidence, supra, reveals substantial evidence to support the judgment appealed from.

Appellant next contends that the court erroneously overruled his demurrer to the indictment which was based on an alleged misjoinder of causes of action. In arguing this point he asserts that separate offenses against separate defendants were charged in a single indictment. In a recent decision, the Supreme Court held that different offenses may be joined, even though they do not relate to the same transaction or event, if there is a common element of substantial importance in their commission. (In re Pearson, 30 Cal.2d 871 [ 186 P.2d 401 ].)

It clearly appears that in each of the main circumstances the occurrence of the fire, the subsequent attempts to defraud the insurers, and the filing of false claims and appraisals, is a common element of substantial importance in the offenses included in the indictment so as to permit their joinder. Whether or not such joinder is permissible,' when in addition to the joinder of separate offenses separate defendants are involved, presents a question more difficult of solution. However, separate offenses were charged against separate defendants in People v. Flores, 62 Cal.App.2d 700 [ 145 P.2d 318 ], and it was there decided that such joinder was authorized by Penal Code, sections 954 and 1098. People v. Guerrero, 22 Cal.2d 183 [ 137 P.2d 21 ], is to the same effect. On the basis of the foregoing authorities we hold that the trial court did not err in overruling appellant’s demurrer.

Appellant’s next contention is that the court erred in denying his motion for a separate trial in that much of the evidence introduced at the trial pertained to the charges against Martin and Burton and not to him. His argument is that prejudice resulted therefrom in that it was impossible for

“Since the enactment of section 1098 of the Penal Code, in its present form, a defendant jointly charged is not entitled to a separate trial as a matter of right, and the question of severance rests entirely in the discretion of the trial court. . . . It is not an abuse of discretion to refuse to grant a motion for a severance because damaging testimony or the admission of confessions of a codefendant might be admitted in evidence against such codefendant, and not be admissible against the moving defendant.” See, also, People v. Baa, supra.

In view of the foregoing and the fact that much of the evidence relating to the fire and the extent of the damage, if any, thereby caused would necessarily have to be introduced if appellant were tried separately, we are unable to conclude that the trial court abused its discretion in this regard.

Appellant lastly contends that the effect of the action of the trial court in denying his motion for a new trial whereby he was forced to submit to a joint trial constituted a violation of due process of law in violation of section 1, article XIV of the Constitution of the United States. Since we have concluded that the trial court acted within the discretion with which it was vested by section 1098 of the Penal Code, such contention in reality attacks the validity of said statute.

It is sufficient to state that as the court said in People v. Yeager, 194 Cal. 452 [ 229 P. 40 ], “It is within the province of the legislature to vest the trial court with authority to decide whether there shall be a separate or a joint trial of defendants jointly charged.” In People v. Dowell, 204 Cal. 109 [ 266 P. 807 ], wherein the validity of the statute was in

The judgments and orders appealed from are affirmed.

A petition for rehearing was denied May 19, 1949, and appellants’ (Sugarman and Martin) petitions for a hearing by the Supreme Court were denied June 2, 1949. Carter, J., and Schauer, J., voted for appellant Sugarman’s petition for a hearing.