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District Court of Appeal, First District, Division 1, California.


Cr. 2423.

Decided: April 14, 1947

Vincent W. Hallinan, of San Francisco, for appellant Henderson. Russell T. Ainsworth, of San Francisco, for appellant Moore. Robert W. Kenny, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Ralph E. Hoyt, Dist. Atty., and Arthur H. Sherry, Asst. Dist. Atty., both of Oakland, for respondent.

Frederick W. Henderson and Jack Moore were jointly indicted, tried and convicted on 10 counts of grand theft (fraudulent representations knowingly and designedly made to defraud persons of money, as prohibited by § 484 of the Penal Code) and one count of conspiracy (obtaining money by means of false promises with the fraudulent intent not to perform such promises, as prohibited by § 182, subd. 4, of the Penal Code). They separately appeal from the judgment of conviction and order denying their motions for a new trial. By its various commitments the trial court provided that Henderson's terms under the first three counts should run consecutively, with the remaining terms to run concurrently, whereas Moore's terms are all to run concurrently.

These cases took over two weeks to try. The reporter's transcript totals nearly 2,000 pages. The following tabulation will serve to summarize the provisions of the indictment. Both defendants were charged as follows:

The prosecution of these defendants grew out of the operation by them of what purported to be a general contracting business conducted by Henderson under the name, The Bay Pacific Company. Moore was associated with the enterprise, first as salesman and later as general sales manager. These two men and others from July of 1945 to January of 1946, when they were arrested, devoted their principal efforts towards the solicitation of contracts calling for the construction of new homes and business buildings. The evidence shows that the appellants sold many contracts during this period and collected from the persons desiring to build substantial sums of money. It also shows that in the course of selling these construction contracts numerous false representations were made in order to induce the prospective customers to enter into these contracts. It is these false promises and the failure to perform these contracts that form the basis of this prosecution.

Both appellants urge that the evidence is insufficient to sustain the verdicts. Such contention, so far as Henderson is concerned, totally lacks merit. So far as Moore is concerned, the contention is partly meritorious, as will later appear.

Henderson was the promotor and organizer of the entire project. He, apparently, is a man of unusual talents and imagination. At the time of trial he was but 28 years of age. His father is a building contractor, and Henderson got his first building experience with him. This appellant started on his own as a builder in Stamford, Connecticut, in 1939. He conceived the idea of building houses in groups on an assembly line basis, the workmen working in crews on a piece-work basis. He figured that he could thus build a house, complete, in twenty-four or five working days. He started to put this plan into effect in Westchester County, New York. On the first 60 houses thus constructed he made a net profit of $500 or $600 per house, but he shortly ran into difficulties with labor unions and with various contractors. His plan envisaged the dispensing with subcontractors. There were over a hundred more houses constructed on a fixed price basis, and because of these difficulties he went broke, losing over $100,000. He then worked for a while in Washington, D. C., and in Virginia, and then was forced to stop work because of rheumatic fever. While ill he worked out a plan to eliminate the difficulties he had run into in New York. It was the plan thus conceived that he attempted to put into effect in Alameda County. The plan included cost, plus a percentage of profit, contracts, to do away with the danger of loss from fixed price contracts. It included the concept of the one construction company hiring at high wages skilled mechanics in all branches of the building industry, thus dispensing with sub-contractors. It envisaged the building company owning many of its own sources of materials, particularly lumber, and purchasing other materials in large lots. It included the building company working out all details of financing the various projects and furnishing to their clients every service necessary to the purchasing, designing, financing and constructing a house.

With this general plan in min Henderson came to San Francisco in December, 1944. For a short while he worked with a wrecking company and then was hired to sell paint jobs for a painting company. At this company he first met M. R. Arnold, who subsequently became associated with Henderson, and who was one of the State's witnesses. Henderson put on such a campaign selling paint jobs for his employer that he was shortly bringing in 90 percent of all paint jobs performed by his employer. In March, 1945, he quit this job, and in April started to organize The Bay Pacific Company. This company mushroomed in startling fashion.

Henderson's original plan was to organize a corporation and to turn over the assets and liabilities of his company to it. A corporation called Bay Pacific Corporation was in fact incorporated in August, 1945, and a permit to sell stock was secured which required the first $25,000 secured from the sale of stock to be escrowed. This permit was voluntarily surrendered in November of 1945. The corporation at no time operated the business in question. The business was the sole property of Henderson. Many of the contracts and receipts introduced into evidence are signed ‘Frederick W. Henderson, Sole Owner,’ and many of the checks introduced into evidence were endorsed ‘Bay Pacific Company * * * F. W. Henderson, Sole Owner.’

At this point a few words should be said about appellant Moore. Until he became associated with Henderson, in July of 1945, he was in the re-roofing and remodeling business in Tacoma, Washington. He had responsible positions with responsible concerns in Sacramento and Los Angeles and had been in business for himself in Montana where he first met Arnold, who recommended him to Henderson.

The amazing development of The Bay Pacific Company was testified to by Henderson and by several of his employees. The company was started on $5,000 that Henderson borrowed from some friends. To trace in detail the activities of this company and the activities of Henderson and Moore, as disclosed in this langthy record, would extend this opinion to unreasonable length. The best that can be done is to summarize, briefly, these activities, and for that purpose the following outline has been prepared:

There was considerable evidence introduced as to the hopeless financial condition of the company. It is quite apparent that from the very first the company had insufficient capital, and that its financial condition grew steadily worse until the inevitable collapse. Sufficiency of the Evidence on Ten Grand Theft Counts as to Henderson.

A reading of the record demonstrates that Henderson directly and indirectly made numerous false statements to prospective customers to induce them to make contracts with They Bay Pacific Company. Some 20 prospective persons, including those named as the victims in the first 10 counts of the indicatment, testified as to these representations by which nearly $80,000 was secured from customers. Thus it was represented that The Bay Pacific Company had mills in the northern part of the state, and that all kinds of building materials were available through contracts and agencies that the defendant had with different plumbing, hardware and electrical dealers; that the company had an electrical agency; that the company made loans from banks in groups for its customers and thus got more favorable interest rates; that a particular type of tile had been invented by one of the employees, and the company had the right to its use; that the company had his own tile yard; that it had supplies of pre-war plumbing materials; that the company owned land in Berkeley and Albany for its lumber yard and warehouse site; that the company had on hand enough lumber to start construction at once and that they had plenty of kiln-dried lumber at Garberville; that the company owned the Claremont Heights property and the Masonic Avenue property; that the company had carloads of plumbing material available; that the company was constructing 100 houses. Various representations, all false, were made to various persons and organizations to the effect that the company was a responsible firm with substantial assets. The evidence shows that neither the company nor Henderson ever owned any property, and that it had no substantial financial resources. Henderson argues that the various representations were true. It is a fact that as to most of them some deal was pending by which Henderson hoped that the representation would come true. Thus the representation about owning lumber mills was based on the fact that deals were entered into with the Hobsons, Weott, Perry, Briceland and others in reference to the purchase of lumber and mills, but all these deals fell through. According to the evidence Henderson represented he had presently available all the lumber he needed and his own mills, when he knew that no mills were in fact in operation and that his interests therein were contingent. The representation that he had facilities available to dry kiln the lumber was false. While some discussion had been had with Tidewater Company about securing their kilns, nothing was ever done about it. The representation that he had seasoned lumber to carry out the contracts was clearly an overstatement. The representations that he had his own lumber yards in Oakland and Albany were false. While he started to negotiate with the owners to buy, he never got title because of inability to make the down payments. Most of his representations about having plumbing materials presently available were false. The most that the evidence shows is that Henderson tried to negotiate the purchase of two carloads, but the deal never materialized. His representations that he had presently available all necessary electrical equipment was false. At most he had a deal with Dong to buy from Dong if and when Dong could get such appliances. The representation that he had lots on which to build was an overstatement. The most he had was an option to purchase. His representations that he maintained specialized crews of flooring men, electricians, plumbers and other craftsmen were overstatements. While he had some carpenters, painters and laborers in his employ he did not have any plumbing, electrical or flooring crews.

It is quite clear that if the evidence is considered, as we must consider it, in the strongest light in favor of the verdicts (People v. Matthew, 68 Cal.App. 95, 228 P. 417; People v. Rankin, 10 Cal.2d 198, 74 P.2d 71; People v. Newland, 15 Cal.2d 678, 104 P.2d 778; People v. Kessler, 62 Cal.App.2d 817, 145 P.2d 656; People v. Buenaflore, 40 Cal.App.2d 713, 105 P.2d 621) it is ample to prove every element necessary to sustain the convictions on all 10 counts of grand theft. The court fully instructed on the elements of the offenses charged. The jury was amply justified in its findings.

Sufficiency of the Evidence on Ten Grand Theft Counts as to Moore.

There is merit in Moore's contention that as to his conviction under Counts 1, 3 and 7 of the indictment—the Swift, Roddick and Morgan counts—the evidence shows that he did not participate therein, the three transactions being handled entirely by Henderson. The State does not contend that the evidence shows that Moore participated in these three deals, but contents itself with the assertion that the case was tried on a conspiracy theory, and that the declarations of one conspirator made in furtherance of the conspiracy are binding on all conspirators, citing People v. Cook, 10 Cal.App.2d 54, 51 P.2d 169 and People v. Suter, 43 Cal.App.2d 444, 111 P.2d 23. It is true, of course, that in a prosecution for conspiracy the declarations of one conspirator made in furtherance of the conspiracy are binding on all, but that does not mean that where specific offenses are also charged, that the State does not have to prove against each defendant all of the elements of each offense. Here, in the challenged counts, Moore was charged with the grand theft of specific amounts of money secured from Swift, Roddick and Everett Morgan on specific days. If Henderson had testified that Moore assisted him in these deals the cited cases might be in point, but the evidence fails to show directly or inferentially that Moore participated in the slightest degree in these offenses. The conspiracy charged in Count 11 is of no importance here because it charged as overt acts entirely different transactions. The convictions under the three counts must be reversed.

As to the other seven counts of grand theft, Moore vigorously contends that, although he made the various representations appearing in the record to the persons named in the various counts, and even if the representations were false, the evidence shows that he made them in good faith in reliance on information given him by Henderson and others in his employ and upon whom he had a right to rely. In other words, it is urged that there is no evidence as to the basic element of intent to defraud.

There can be no doubt that the record demonstrates that Moore was not nearly as morally reprehensible as was Henderson. On the other hand, Moore did make many false representations. In reliance on them the persons named in the seven counts under discussion parted with their money. Whether Moore made these representations in good faith or whether he made them knowing they were false, or in reckless disregard of the truth and without information justifying the belief, were questions for the jury. Intent cannot always be proved by direct evidence. Many times it has to be determined from a consideration of all the circumstances surrounding the doing of an act. Certainly the jury was justified in finding that one who was so closely connected with the company must have known that many of his representations were false. This being so, this court cannot disturb the verdicts. (People v. Newland, 15 Cal.2d 678, 104 P.2d 778; People v. Kessler, 62 Cal.App.2d 817, 145 P.2d 656; People v. Jones, 61 Cal.App.2d 608, 143 P.2d 726.) An intention to defraud is an essential element of the charged offenses, but such intention is inferable from all the facts of the case and need not be substantively proved. (2 Wharton's Criminal Law, § 1450, p. 1739; Miller on Criminal Law, pp. 382–389; May's Criminal Law (3d Ed.), pp. 299–312.)

Sufficiency of the Evidence as to Both Appellants on the Conspiracy Count.

The essence of this charge is that Henderson and Moore conspired to defraud by making false promises with the fraudulent intent not to perform them. Once it is determined, as it already has been determined in connection with the grand theft counts, that both appellants in connection with the business of the company made the false representations charged, the fact that they acted in concert is proved by both direct and inferential evidence. What was said in People v. Yant, 26 Cal.App.2d 725, 737, 80 P.2d 506, 511, is applicable to the present record: ‘It is not often that the direct fact of an unlawful agreement which is the essence of a conspiracy can be proved otherwise than by the establishment of independent facts bearing upon the common design; and the question as to the existence of the conspiracy being one of fact, it is sufficient if the circumstances proved satisfy the jury, leaving the weight and sufficiency of the evidence to the triers of the questions of fact.’ See, also, People v. Sampsell, 104 Cal.App. 431, 286 P. 434; Johnstone v. Morris, 210 Cal. 580, 292 P. 970; Revert v. Hesse, 184 Cal. 295, 193 P. 943; Campbell v. Birch, 19 Cal.2d 778, 122 P.2d 902; People v. Kauffman, 152 Cal. 331, 92 P. 861.

The real question presented is whether the false promises were made with the fraudulent intent not to perform them. Henderson urges that had he not been interfered with he would have fulfilled his basic promises. His argument amounts to the contention that the proof of his intent not to perform rests on circumstantial evidence, and he invokes the rule that such evidence will sustain a conviction only where the circumstances not only are consistent with guilt but are inconsistent with every reasonable hypothesis of innocence. The jury was so instructed. So far as an appellate court is concerned, we think the evidence supports the implied finding of fraudulent intent, and, that being so, the contention now under consideration is without merit.

Moore vigorously contends that he was not even in the employ of the company on July 25, 1945, the date the conspiracy is alleged to have started. The evidence does show that he was in Oakland conferring with Henderson on July 23 and 24, 1945; that he then returned to Tacoma; that he came back to Oakland on August 7, 1945, and became salesmanager on August 26, 1945. Whether he actually started to conspire with Henderson on the 25th is immaterial. (State of California v. Day, 76 Cal.App.2d 536, 173 P.2d 399.) As long as there is active cooperation, the period when each defendant enters the conspiracy is immaterial. (2 Wharton's Criminal Law, § 1608, p. 1865.)

Moore, like Henderson, urges that there was no intent to defraud. What was said as to Henderson's like contention is equally applicable here. All of the problems presented as to the conspiracy count were jury questions. Its findings are supported and cannot be disturbed.

Alleged Errors of Law.

1. Evidence of other offenses.

During the trial the court admitted evidence of sales and representations to others than those mentioned in the indictment. Both appellants recognize the rule that evidence of other acts of a similar nature may be admitted, when not too remote, to prove a material fact or where they tend to show motive, scheme, plan or system. (People v. Nakis, 184 Cal. 105, 193 P. 92; People v. Kynette, 15 Cal.2d 731, 104 P.2d 794; People v. Hatch, 163 Cal. 368, 125 P. 907; People v. Hennessey, 201 Cal. 568, 258 P. 49.) An examination of the record as to the sales made to Harry and Virginia Howard, George and Tena Gatliff, John Tau, Mary Lund, Charles Kelso, and Vincent Aiuto shows that they fall well within the realm of admissibility.

The facts in reference to these sales were introduced seriatim. Counsel for Henderson wanted to know if he had to object separately as to each one. The trial judge stated: ‘Maybe counsel will stipulate you will have these objections to similar offenses.’ There then followed a colloquy between Henderson's counsel, the Court and the deputy district attorney over the question, during which all of them used the expression ‘similar offenses,’ or described the transactions in question as ‘offenses' several times. Moore complains of this use of the word ‘offenses' and urges that declaring the testimony is a ‘similar offense’ invades the province of the jury, that is, that it was for the jury to decide whether the transactions were offenses and whether they were similar offenses. This may be true, and the use of the term ‘offenses' was perhaps unfortunate, but it could not possibly have been prejudicial. The jury was fully, fairly and completely instructed on its proper functions and could not possibly have been misled by this challenged colloquy.

Henderson complains of the introduction of many checks which were postdated and which were not paid by the banks on which they were drawn. The record shows that Henderson's counsel stipulated to the introduction of the various checks which were offered to establish the facts alleged in the indictment. The checks in the ‘similar offense’ category were merely cumulative. The objection is without merit.

2. Introduction of pamphlet, ‘Walls of Tomorrow.’

Appellant Moore contends that error was committed in admitting into evidence this exhibit, a pamphlet describing the activities of the corporation. This pamphlet was introduced while Tracy Clark, who had been employed to sell real estate for the company, was on the stand. He testified that Henderson gave him the pamphlet in October, 1945, and told him that it ‘was the text of, or copy to be used in getting out some advertising * * * [for the] Bay Pacific Company's program.’ Moore urges that the document referred only to the activities of the corporation which never actively engaged in business, that it was never exhibited to prospective customers, and that it was a mere communication between employer and employee. It will be noted that Clark testified that the pamphlet was to be used as a text for advertising for the company as distinguished from the corporation. Moreover, it is a reasonable inference that Henderson expected Clark to read the document and to use its representations in his selling campaign. At any rate, the admission of this document could not possibly have been prejudicial. The representations contained therein, although couched in quite flowery language, had been testified to by a host of witnesses. At most it was merely cumulative.

Alleged Coercion by the Court.

The jury consisted of 10 women and 2 men. The case had taken almost three weeks to try. The jury commenced its deliberations at 11:45 a.m. At 4:47 p.m. of the same day the jury returned to the courtroom and requested that a certain portion of the transcript be read. After this was done the trial judge told the jury that: ‘This case has taken a long time to try, and if you don't reach a verdict, say, by 9:30 or 10:00 o'clock tonight, I plan to lock you up. So, as soon as it becomes apparent that you are not going to reach a verdict on all counts tonight, by that time, say, will you let us know so we can dispatch some deputies around to your various homes to get the things you will need.’ The jury returned with its verdict at 5:58 p.m. Appellant Moore urges that the necessary effect of this statement by the court was to coerce the jury into reaching a verdict. In this connection he relies on the affidavits of two jurors, one who was by stipulation excused after this statement was made because she stated she was ill, and counsel stipulated the alternate could be substituted, and one by one of the jurors, who avers that she heard one of the women jurors state that she did not want to stay overnight and wanted to go home. The sick juror averred, in effect, that she declared she was ill because she wanted to go home. Aside from the elementary rule of law that a juror is not permitted in this fashion to impeach his verdict it is quite obvious that what the trial judge said was not said for the purpose of coercion, but was said for the purpose of serving the convenience of the jury. Here was a case where about 2,000 pages of evidence were introduced. There were 11 counts against each defendant. Obviously, had the jury not agreed prior to 9:00 or 10:00 p.m. it would have been most proper to hold them overnight to see if agreement could not be reached. But with 12 jurors and several alternates this would mean sending a bailiff or deputy sheriff to quite a number of homes to notify relatives and to secure articles for the convenience of the jurors. The trial judge is to be commended rather than reproved for his consideration.

Alleged Misconduct of District Attorney.

Henderson charges that the district attorney was guilty of misconduct in several respects. He first complains of a reference by the deputy district attorney to the possibility as to whether a debenture issued by Henderson as consideration for the Hobson contract violated the corporate securities act. The record shows not only that Henderson's counsel failed to object or request that the statement be stricken, but that the statement was made in direct response to a question of Henderson's counsel directed to the prosecutor. While it would have been improper to have charged Henderson on this trial with a violation of the corporate securities act, here the error of which he complains was not only invited but specifically requested by Henderson's counsel. Moreover, the debenture in question was made part of the record upon the consent of Henderson's counsel. Under such circumstances Henderson is in no legal position to complain. People v. Page, 28 Cal.App.2d 642, 83 P.2d 77; People v. Ralls, 21 Cal.App.2d 674, 70 P.2d 265.

Henderson also objects to certain questions asked him on cross-examination which indicated he had failed to pay certain federal payroll taxes, and had been in difficulties with the Internal Revenue Department. An examination of the record discloses that this subject was directly inquired into by Henderson's counsel on direct examination. Where the defendant opens a subject on direct examination, it may be examined into on cross-examination, and defendant has no legal ground for complaint, particularly where, as here, he has failed to object to the questions asked on cross-examination. People v. Brown, 71 Cal.App. 181, 235 P. 72; People v. Medalgi, 94 Cal.App. 543, 271 P. 552.

Alleged Misconduct of the Jury.

On the motion for new trial affidavits and counter-affidavits were filed by several of the juror, the alternates, and one by the attorney for appellants. Of the affidavits relied upon by appellants only one is of a juror who participated in the final determination of the case—that of Anita George. The affidavits of Lee B. Kidwell and of Mrs. Minnie Taylor show that although they were originally selected as jurors they were later excused and alternates selected in their places. As to these affidavits, at least as to matters not occurring while they were regular jurors, and as to the affidavit of the attorney, they do not fall within the rule that jurors cannot, by affidavit, impeach their verdict, except to show that such verdict was reached by lot. People v. Galloway, 202 Cal. 81, 259 P. 332.

The appellants assert that the affidavits show misconduct on the part of the jury in four respects:

1. It is alleged that the jury received evidence out of court. The affidavit of Mrs. Taylor avers that she heard juror Sheinberg state and argue that Henderson had ‘defrauded people in the East of a lot of money and would defraud other people if they weren't convicted.’ There is no evidence in the record of this asserted fact. Penal Code, § 1181, subd. 2, provides that a new trial may be granted when the jury has received evidence out of court. The affidavit of the juror Sheinberg generally denies the facts averred by Mr. Taylor. This conflict was for the trier of the facts.

2. It is urged the jury failed to follow the Court's instructions. Again the Taylor affidavit is relied upon. It is there averred that during the discussions in the jury room no effort was made to discuss the guilt or innocence of Moore and Henderson separately as the court had instructed. It is also averred that during the trial the affiant and jurors George, James and Kelly rode together and were heard by Taylor to state that they favored the prosecution from the beginning. The Court had, of course, instructed the jurors not to discuss the case during recess. These charges are generally denied by the juror Kelly. Inasmuch as Mrs. Taylor was excused before the verdicts were reached, she could not know what happened after she left. As to the alleged prejudice it is specifically denied by the juror Kelly. General discussion of the jurors during recess, while not to be approved, could not, as a matter of law, be prejudicial.

3. The jurors prejudged the case before the evidence was in. The affidavits of Kidwell and Taylor are particularly aimed, in this respect, at the juror Jurs. They aver that while these two affiants were still members of the jury, the juror Jurs opened a discussion with each of the affiants and indicated that he was convinced of the guilt of the appellants. This charge is specifically denied by the juror Jurs, and is generally denied in the affidavits of several of the other jurors. This conflict was for the trier of the fact.

4. That one of the jurors was coerced and intimated. This is perhaps the most serious charge made. Its charge relates to the circumstances under which the juror Taylor was excused as a juror. The facts relied upon appear in the affidavit of Taylor and are corroborated by the juror George. It appears in these affidavits that Mrs. Taylor was regularly selected as a juror and participated as such all through the trial, and retired with the jurors to deliberate on the verdicts; that she alone of the jurors was in favor of acquittals for both appellants; that she remained adamant in this position, whereupon several of the jurors became very excited and sought to coerce and intimidate her by charging her with perjury on her voir dire examination; by accusing her of being friends of the appellants, etc. The record shows that the jury came into court and it was reported to the judge that Mrs. Taylor was too ill to continue the deliberations, whereupon the judge carefully interrogated her. He told her that if she just did not feel like assuming the responsibilities of a juror she could not be excused, but that she could if she were really ill. Mrs. Taylor replied that she was sick and might ‘pass out’ at any time. She was excused. The affidavits of nearly all of the jurors, with the exception of the George affidavit, aver that no coercion or intimidation was practiced on Mrs. Taylor, and aver that she represented she was too ill to continue. This conflict was for the trier of the facts.

In connection with all of these charges appellants urge that their affidavits were properly filed, and sustain the charges of misconduct, citing People v. Galloway, 202 Cal. 81, 259 P. 332. In that case certain affidavits alleging misconduct on the part of the jury were offered in support of the motion for a new trial, but, on objection of the district attorney, the trial court struck from the affidavits certain statements alleged to have been made by a juror prior to being sworn and other statements alleged to have been made subsequent to the rendition of the verdict. As one of several grounds of reversal the Supreme Court held that this was error, and that the trial court should have considered all affidavits of jurors as to statements made before and after the trial. But the court did not hold that because such affidavits should have been considered that the trial court was compelled to believe them, even if controverted. Here the affidavits were all filed and considered by the trial court, and, after argument, the trial court denied the motions for new trials. It is elementary law that the decision of the trial court in denying a motion for a new trial after considering conflicting affidavits is final in the absence of a showing of abuse of discretion—in fact, one of the cases cited by appellants so holds—People v. Von Badenthal, 8 Cal.App.2d 404, 48 P.2d 82. (See, also, People v. Negra, 208 Cal. 64, 280 P. 354; People v. Ross, 89 Cal.App. 132, 264 P. 314; People v. Maggio, 90 Cal.App. 683, 266 P. 813; People v. Sotelo, 102 Cal.App. 688, 283 P. 388.) Thus, even if the affidavits of Taylor and Kidwell were properly considered as to facts occurring while they were jurors (a point we do not decide) since they were filed and considered and controverted, the finding of the trial court cannot be disturbed.

The judgment and order denying the new trial as to Henderson are affirmed; the judgment and order denying the new trial as to appellant Moore are reversed as to Counts 1, 3 and 7, but as to the other eight counts are affirmed.

PETERS, Presiding Justice.

WARD and BRAY, JJ., concur.

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