PEOPLE v. ASHLEY

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District Court of Appeal, Second District, Division 2, California.

PEOPLE v. ASHLEY et al.*

Cr. 4712.

Decided: December 23, 1952

George H. Ashley, in pro. per. Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.

Appellant was convicted on four counts of grand theft. He appeals ‘from the verdicts and judgments as to each count’ and from ‘the order denying motion for new trial.’ He grounds his appeal upon denial of due process; fraud practiced on the court by the district attorney; being compelled to undergo a trial on charges known to be false; lack of jurisdiction to enter a judgment on counts VII and VIII since there was no proof of his stealing $4,200 on December 4, 1948; the money and property were loaned to a corporation; admission of incompetent evidence; insufficient evidence to support the judgments; prejudicial misconduct of the district attorney; misconduct of the trial judge; refusal to hear appellant's argument for a new trial; denial of his motion for a new trial.

Count V alleges that defendant in Los Angeles County unlawfully took $13,590 from Mrs. Neal on June 19, 1948, and count VI pleads that he took $4,470 from the same lady August 3, 1948.

Count VII charges that on November 19, 1948, defendant feloniously took $3,000 from Mrs. Russ, and count VIII declares he unlawfully took $4,200 in money on December 4 from Mrs. Russ.

After verdicts had been returned against him on the four counts,1 he moved for a new trial and applied for probation. The motion and the application were both denied.

The Evidence Sufficient.

The evidence in support of counts VII and VIII is the testimony of Mattie Russ, and documentary proof.

Appellant was ‘business manager’ of ‘Life's Estate, Ltd.,’ a corporation chartered in 1947 for the purpose of ‘introducing people.’ Its president was Mrs. Wingrave; vice president, Leo Butts, the son-in-law of appellant. Mrs. Butts was secretary-treasurer. They developed an institution with about 2,000 members. Their principal office was at 1537 La Brea Avenue, Los Angeles.

In 1948 Mrs. Russ, seventy years of age, visited the office of Life's Estate. She was introduced to appellant who had chosen to be addressed as Monsieur Georges. After Mrs. Wingrave's unsuccessful effort to sell her a membership, Monsieur took over and induced the hesitant visitress to join. Answering his telegraphic invitation to return, she called at the office of appellant where he gained her consent to become hostess of the club at $100 a month with an apartment. In conveying her home he drove by a Sunset Boulevard lot occupied by two sheet metal structures and told her that ‘he owned that property and they also owned the La Brea property at 1537.’ Having ascertained that she had some ‘ready cash’ he said, ‘I am in need of money and if you will loan me the $3,000.00 I will give you a mortgage on the La Brea property * * * I will go on with the theater building.’ It was to be a first mortgage. He then developed that she held a first trust deed on her former home which she had sold to Mrs. Lee as well as a chattel mortgage on its furniture. The note so secured was for the sum of $4,200. Also, she had a trailer in which she lived.

Pursuant to appointment, appellant called for her on the following day, took her to a bank in Long Beach. He declined to accompany her into the bank, insisting that she enter, obtain the money and bring it to him. After she came forth with the $3,000 in currency, she accompanied him in his automobile to a bank at Westchester, a subdivision of Los Angeles. On arrival she handed the $3,000 to appellant believing she would get a first mortgage on the La Brea property and that her money was to be used toward the construction of a theater on the Sunset Boulevard lot which she believed he owned. He then drove to 1537 North La Brea on which he again told her she was to have a first mortgage for her $3,000 at six per cent interest. While at dinner he told her again he was badly in need of money and inquired whether she might increase her loan; he desired to finish the theater building. He promised her a first mortgage on the La Brea property upon her transferring her ‘first trust deed to him.’

November 20 she delivered to appellant the trust deed and chattel mortgage and they then visited Mrs. Lee. Appellant notified her he was ‘taking over this trust deed and chattel mortgage’ and reproached that lady for having moved the furniture from the house and threatened to foreclose. Also, on the same day, Mrs. Russ endorsed to appellant a cashier's check for $1,580 which she had received for her trailer. All such funds so transferred to appellant he promised to use in constructing a theater on the Sunset lot and she was to have a first mortgage on the La Brea realty as security. She relied upon such promises. But she got no mortgage. Thereafter their meetings were marked by bitter quarrels, because she ‘could not get a mortgage.’ Finally, he told her to ‘take this second trust deed’ on a lot in the canyon ‘or nothing.’ Although she had advanced to him $8,623.04 and had requested it, she never received a note secured by a mortgage on the La Brea property. But on February 3, 1950, he took her for a drive ‘up the canyon,’ terrified her with curses and threats to drive her ‘over the mountain’ unless she gave him ‘four checks' which he had given her on account of the moneys she had loaned him and which she had on her person. He thereupon threatened to commit suicide and instructed his associate Farnsworth who had mysteriously arrived on the scene to ‘cash’ his life policy and pay Mrs. Russ. Subsequently, driven by fear, she accepted as security for $8,527.82 a second trust deed on a property already encumbered with a $5,000 mortgage.

At the time of her first payment of the $3,000 she received a writing signed by Life's Estate, Ltd. by Geo. H. Ashley, agent, and Edith Wingrave, president, purporting to receipt her for the $3,000 and to set forth her agreement to make the corporation an ‘unsecured loan including the three thousand dollars * * * plus two certain deeds of trust approximating $4,000, more or less plus proceeds of a trailer to be sold * * * for which the corporation agrees to execute its unsecured promissory note, due and payable with interest at 6% per annum, four years from date of execution.’ That paper he demanded as a condition of his delivering to her the first mortgage he had promised. She returned it on his demand within three weeks after she had transferred the Lee trust deed to him, but did not receive the first mortgage. She made a copy of the ‘receipt’ from memory promptly after its delivery to him.

In support of counts V and VI the testimony of Maud J. Neal taken at the preliminary hearing was submitted. She had returned to her North Carolina home. She had come to Inglewood in January of 1948 and learned of Life's Estate from an advertisement in a local newspaper. In March she met Leo Butts and visited the office at 1537 North La Brea. She was there introduced to ‘Monsieur Georges' by Mrs. Wingrave. He at once inquired about her home and her property. She had war bonds to the amount of $17,500 and they were in a lock-box in her eastern home town. Did she have children and if she should meet some fellow and liked him would she divorce her husband and marry the new man and if so would she turn her money over to him to use as he pleased? Thus queried the Monsieur. After gaining an affirmative response, he suggested her meeting with Dr. Meyer, in the same building. The introduction was accompanied by appellant's complimentary reference to ‘a very nice outstanding lady from the South where his mother came from.’

Thereupon she subscribed to a membership in Life's Estate for which she agreed to, and did pay $40. During the three succeeding months appellant approached Mrs. Neal frequently about her lending him money. ‘I'm going to buy a theater,’ said he; ‘I have an option on the building; I need enough to make the down payment; it is El Patio Theater, worth $500,000; is located on North La Brea at Hollywood Boulevard, and is to cost me $165,000.’ He offered to give her a note against Life's Estate and a trust deed against the theater building. He told her that if she would loan him all her money she might live at Life's Estate with Mrs. Wingrave and he would put her in as chief hostess at $40 a week to run the business; that she required new clothes. He accompanied her to a famous emporium, selected her dresses for which she paid. He observed that she should have the services of a lawyer to prepare the papers, but he would choose one that she could trust. When Mrs. Neal offered to write her daughter in North Carolina to send her bonds, appellant objected: that was too slow; she should make a long distance call. On receipt of her bonds she undertook to discuss the matter of being secured for her money, whereupon the monsieur ‘flew into a rage; said I talked like I didn't trust him’; that it burned him up for anybody to question his integrity.

At 10 o'clock in the evening appellant sent for Mrs. Neal; suggested that if he had left the impression that they were not honest he was sorry. He then repeated how good her security would be; that Life's Estate was worth a half million dollars; they had $125,000 worth of equipment. After saying that if she were not a hill-billy she would not be afraid to lend his corporation the money, she agreed to make the loan. On the next day, June 19, 1948, he conveyed her to the bank at Inglewood where she delivered her bonds to him. In the presence of the witness Nelson he told her he needed the money to buy El Patio Theater. She received a cashier's check for such bonds as were cashed in the sum of $13,590. She endorsed and delivered it to appellant (count V), and he accepted it. She deposited her remaining bonds with the Westchester bank for transmission. Thereafter a check for $4,470 dated August 2, 1948, from the U. S. treasury was received by appellant. When she next called at his office he presented to her a new note for $17,500. He told her it was to take the place of the note for $13,500 which he had given her for her $13,590. Also, he asked her to endorse the check for $4,470. When she said she preferred to make use of that sum for other purposes he told her if she would let him have it he would buy her a new car. After some argument had produced no results, appellant frightened the ‘hill-billy’ lady when he took a gun from a desk drawer, laid it on the table and said, ‘Now look here, Mrs. Neal, I don't want no monkey business out of you, do you understand that?’ He then commanded her to give him the note she had and to take the note for $17,500. She promptly obeyed and he kept her $4,470. (Count VI.) Subsequently he excused his failure to purchase El Patio with the statement that it had been condemned and he would build his own theater on Sunsent Boulevard. While the activities of appellant were under investigation, he swore at Mrs. Neal and referred to her as a ‘freakish-looking North Carolina hill-billy’ for ‘turning him in’ and when he learned that she had reported Mr. Nelson at the bank as the witness to her first transaction with appellant, he declared, ‘Now we are ruined.’

Although appellant promised to give Mrs. Neal a first trust deed on the La Brea property to secure her advances to him, he did nothing of the kind. All she ever received was interest payments totaling $649.94. Appellant did not prepare her room in Life's Estate or give her employment. She returned to North Carolina after having testified at the examining trial of appellant.

The witness Farnsworth testified that he worked for Life's Estate as investigator and later as salesman. It was a ‘philosophical society.’ Sylvia Butts, daughter of appellant, was its secretary-treasurer, and her husband, Leo, was its vice president. One half of the capital stock belonged to them; the remainder to Mrs. Wingrave. Farnsworth testified he inquired into the background of applicants for membership and gave his reports to appellant and at times to Dr. Meyer. All leads to prospective members were supplied by appellant. The purpose of the investigation was to enable them to match up people after having them psychoanalyzed and classified as to religious faiths and hobbies so ‘they would be congenial and possibly lead to matrimony.’ Appellant told him the Sunset property belonged to appellant; he had some plans for a theater, a stage, a parquet; ‘I went by myself to an architect.’

He testified that he saw Mrs. Russ on the Nichols Canyon road; when he saw her he met appellant and Mrs. Russ driving toward him. He reversed his direction, passed them and parked his car. Mrs. Russ immediately left appellant's automobile and came to the witness. She was upset. Ashley came and ‘I gave him the envelope which was my mission and he opened it, give it to Mrs. Russ and she * * * read the paper.’ He then conversed with Mrs. Russ, made some changes in it, gave it to her and demanded some checks she had. Appellant told the witness to ‘come up in the canyon in half an hour and pick up my remains.’ The witness took Mrs. Russ home. She had the checks inside her dress all the time.

Mrs. Russ was further corroborated by the witness Robertson, a dealer in buying and selling trust deeds. January 15, 1949, he purchased from appellant the trust deed and note of Mrs. Lee in favor of Mrs. Russ for $3,000. Also, on November 9, 1948, appellant deposited $3,000 to the account of Life's Estate in the bank where Robertson was employed.

Documents filed showed that the Sunset property was conveyed to Life's Estate, and a trust deed of that corporation conveying the same to a local bank was executed as security for the payment of $40,000.

Dr. Louis Phillips testified that he had been owner of the premises, 1537 North La Brea, for fifteen years; had never leased it to appellant but had leased it for five years to Mrs. Wingrave; he had not authorized any one to place any encumbrance against it.

The books of the depositary bank of Life's Estate showed it deposited $3,000 November 19, 1948, when Mrs. Russ first gave her money to Ashley. At the beginning of that day there was an overdraft of $4,151.93, and it was stipulated that after the $3,000 was deposited, such sum was duly disbursed to pay the running expenses of the depositor.

It was stipulated that the trust deed held by the Long Beach bank was sold to Mr. Robertson and the proceeds, ‘approximately $3,000 were paid to Mr. Ashley and deposited to the account of Life's Estate and were thereafter disbursed for the normal running expense of the business.’

The bank records also disclosed that the $1,580 received for the Russ trailer went into the same account and it was stipulated that it was used for Life's Estate for running expenses and that the same account showed a deposit of $2,600 after deducting $400 and that it was used to pay the running expense of Life's Estate.

In view of the foregoing summary of the proof, no disinterested lawyer can reasonably assert that the jury did not have sufficient evidence to warrant the conviction of appellant for theft on the charge of false pretenses. Our function is to decide only whether upon the face of the evidence it can be held that ‘sufficient facts could not have been found’ to justify the trial court in finding the accused guilty. People v. Jones, 36 Cal.2d 373, 375, 224 P.2d 353; People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778. Under the cited decisions it is the rule that when the jury has found a prisoner guilty and the trial judge has approved the verdict, it cannot be set aside unless it be made clearly to appear that upon no hypothesis is there sufficient substantial evidence to support the judgment. Despite the law thus announced appellant hs repeatedly detailed much of the evidence adduced as though no verdict had been returned and as though this court were eagerly waiting to hear a discussion of the facts and to strike down the judgments which have brought him to an unhappy denouement.

Corroboration.

The testimony of Mrs. Russ and Mrs. Neal was amply corroborated. The conduct of appellant in dealing with both of them followed a fixed pattern: each was promptly requested to divulge the kind and amount of property she owned; each was asked for a loan; each was crowded to complete the deal; each was to be the hostess of the club; each was terrified for the purpose of gaining an advantage. Despite all the evidence against him, he did not take the stand. That fact was corroborative. People v. Renteria, 60 Cal.App.2d 463, 472, 141 P.2d 37. His silence was ominously proof of a consciousness of guilt, People v. Adamson, 27 Cal.2d 478, 490, 491, 165 P.2d 3; People v. Steccone, 36 Cal.2d 234, 239, 223 P.2d 17, and was properly considered against him. People v. Wiezel, 39 Cal.App.2d 657, 663, 104 P.2d 70. His prior conviction is no excuse for his failure to testify. Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 1680, 91 L.Ed. 1903. Moreover, his failure to produce Mrs. Wingrave was an effectual corroboration. The presumption that her testimony would have been adverse, Code Civ.Proc. § 1963, subds. 5 and 6, was not overcome by any evidence.

Errors Asserted.

Appellant contends that he was unjustly accused in count VIII of theft of $4,200 whereas he took from Mrs. Russ a trust deed and chattel mortgage2 ; he argues that ‘he must be apprised of the cause and nature of the accusations against him’; that he cannot be charged with stealing $4,200 in money and be convicted on evidence of his taking a trust deed, note, and chattel mortgage from the designated victim. Such contention is without support. He was not misled by the pleading. He was present at the examining trial, heard the testimony of Mrs. Russ that he had swindled her of the $4,200 trust deed and read it in the transcript of that trial. When an offense involves a private injury and it is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the property involved is not material. Penal Code, § 956. Where a defendant was charged with taking ‘the property of another * * * consisting of money in the sum of $2,282’ and the evidence was that defendant fraudulently induced the injured witness ‘to execute and deliver to appellant an assignment’ of the witness' pass-book to an auxiliary corporation of the loan company that had issued the pass-book, the indictment was sufficient. The accused was not misled but was fully and correctly informed of the criminal act charged. People v. Woodson, 11 Cal.App.2d 604, 605, 54 P.2d 33; see People v. Freeman, 29 Cal.App. 543, 544, 156 P. 994; People v. Rabe, 202 Cal. 409, 422, 261 P. 303. When appellant obtained possession of the trust deed and chattel mortgage, he told Mrs. Russ that he would discount them at ten per cent and use the funds to build the theater and she should have a first mortgage on the La Brea property and that he would include the $1,580 trailer money in the mortgage. He knew all the facts and he had read all the proof before the trial and could not therefore have been misled by the pleading.

Appellant labors under the confused notion that because Mrs. Russ may have contradicted herself or some writing introduced by him, her incriminating testimony should be disregarded. Such is not the law. Whether a witness was impeached by any proof received is a question for the jury's determination, People v. Tedesco, 1 Cal.2d 211, 219, 34 P.2d 467, even though the witness was contradicted by his own testimony or is shown to have testified falsely in part. The jury's function is to separate the true from the false and thus to decide factual questions. People v. Jackson, 63 Cal.App.2d 586, 592, 147 P.2d 94. The value of testimony is not destroyed by its own contradictions; neither is it inherently improbable merely by virtue of contrary evidence in a writing. Especially is this true where in denying the motion for a new trial the judge has disclosed that he deemed the proof sufficient. See People v. Kuches, 120 Cal. 566, 569, 52 P. 1002. Also, the repeated assertions of appellant that he was convicted on uncorroborated and perjured testimony is disposed of by the clear and emphatic language in People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778. This court is helpless to accord any relief to appellant if the record reveals substantial evidence favorable to the verdict regardless of contradictions and inconsistencies. People v. Warrington, 80 Cal.App. 167, 172, 251 P. 327.

In his argument upon the asserted insufficiency of the evidence, appellant makes a number of unsupported claims. He argues that an impartial trial was denied him in violation of the 5th and 14th amendments to the federal constitution. After a close inspection, it does not appear that such constitutional provisions or any other were ignored. Neither the deputy prosecutor nor any other officer confiscated exhibits or other documentary proof. No evidence was suppressed, slyly or otherwise. Such claim was made by appellant on his motion for a new trial. The denial of that motion was a complete answer to the charges. The court had before it the affidavits of the deputy district attorney, and Lieutenant McClure of the Bureau of Investigation which disclosed that the latter officer called at the 1537 North La Brea office of appellant promptly after the complaint had been filed; found Ashley ‘gone’; searched the premises, seized the books and records of Life's Estate, and brought them to his office. While they were held there appellant and his attorneys and agents had unrestricted access to such records. Appellant's averment that the deputy district attorney suborned perjury and concealed evidence was found to be untrue. His claim that the ‘Loan Agreement and Receipt’ given Mrs. Russ was suppressed was rejected and she deposed that she had never seen or heard of it and had never signed it. It was proved without contradiction by a celebrated handwriting expert that her signature on the paper was a carbon impression and not a genuine signature written with the writing instrument in direct contact with the paper, but was made with a carbon paper on the purported agreement hidden below another piece of paper.

But whatever complaint appellant might make with respect to the documents taken from his office, he made no showing before the case was submitted or on his motion for a new trial that he had sought any process to compel their presence before the jury. There was, therefore, no abuse of discretion shown in the denial of such motion. Consequently, appellant suffered no prejudice by reason of the court's denial of a new trial. People v. Yankee, 79 Cal.App.2d 431, 437, 179 P.2d 582; People v. Weber, 149 Cal. 325, 350, 86 P. 671; People v. Negra, 208 Cal. 64, 73, 280 P. 354; People v. Poor, 52 Cal.App.2d 241, 243, 126 P.2d 146. For the same reason the court's ruling on the motion for a new trial disposes of the numerous arguments to show that appellant was denied due process of law or that the deputy district attorney had perpetrated a fraud on the court; to show that the ‘court ignored affidavits and motion for suppressed evidence’; to show that it was the court's ‘duty to protect innocent’; to show ‘misconduct of Deputy Loucks.’ It disposes of all other assignments made with reference to any other fact impliedly found by the jury against appellant. The court's ruling on the motion for a new trial is far-reaching and all encompassing.

From such portions of the prosecutor's arguments to the jury as are found in the transcript it does not appear that the rules of propriety were transgressed. It is not error for the advocate to state his conclusion from specified facts in evidence which is merely a form of suggesting the finding they should make on such facts. They were instructed to find from evidence only, and not from arguments. (See 8 Cal.Jur., pp. 266, 267.) Under the rule that the reviewing court must consider in the strongest light all evidence that gives support to the verdict and all inferences reasonably deducible and to disregard such as are inconsistent therewith, no discretion is left for this court to interfere with the judgment. People v. Newland, supra; People v. Barber, 112 Cal.App.2d 333, 246 P.2d 99.

The Trial Judge.

It is asserted that the acts of the trial judge constituted prejudicial misconduct; that he took over the role as prosecutor; by insidious behavior deprived appellant of a fair trial, hinted to the prosecutor how to induce Mrs. Russ to say that she had signed Exhibit N, intimidated counsel into stipulating away appellant's rights, in all some 22 acts. Such charges are without substantial support. The judge was constantly alert and carried on with expedition and caution to effect with wisdom and charity the termination of the proceeding.

Acts Described in Counts VII and VIII, Not One Offense.

Appellant suffers the misconception that the crimes alleged in counts VII and VIII constitute a single transaction ‘split into two counts.’ Not so. Two separate crimes are alleged. He took Mrs. Russ' $3,000 on November 19th and on the fifteenth day thereafter he relieved her of a note, secured by trust deed for the sum of $4,200. He says by splitting his transaction he was fatally prejudiced before the jurors in that ‘it tended to increase the number and enormity of the alleged crimes.’ But the law is that by obtaining property by fraudulent pretense the crime is complete and when at a subsequent time the thief takes other property while the victim is under the influence of the same fraudulent representations, a second crime is committed. People v. Ellison, 26 Cal.App.2d 496, 498, 79 P.2d 732. ‘* * * the making of the first false representations which moved or induced the person to whom they were made to part with his property does not immune the defrauding person from punishment for subsequently obtaining from said person other property which was parted with under the influence of the fraudulent representation, which was still operating upon the mind of the defrauded person at the time he passed his property into the hands of said designing person.’ People v. Rabe, 202 Cal. 409, 413, 261 P. 303, 305. On the authority of the Rabe decision, appellant's motion to require an election at the close of the prosecution's evidence was properly denied.

Instructions Not Prejudicial.

Appellant charges that by telling the jury the district attorney was under no obligation to produce evidence, the court deprived him of the right of due process of law. Now, the instruction merely informed the jury that neither side of the controversy is obliged to call all witnesses shown to have been present at or had knowledge of any event involved in the evidence. The instruction (Caljic 23) worked both ways. Appellant called neither himself nor Mrs. Wingrave.

Also, appellant assigns as prejudicial the instruction that a writing last known to be in possession of the defendant is, in legal effect, a lost document and its contents may be proved by parol. That such instruction was correct is supported by People v. Jackson, 24 Cal.App.2d 182, 198, 74 P.2d 1085. Neither was there error in the instruction defining primary and secondary evidence.3 It is taken from the Code of Civil Procedure, sections 1829 and 1830. Nor was it error to give the instruction on expert testimony.4 Appellant had an expert to testify and the instruction is in traditional form.

The instruction5 taken from Caljic 228 is in no sense erroneous. People v. Jones, 36 Cal.2d 373, 379, 224 P.2d 353. Instructions 220, 229a and 229b are correct statements of the law. They define ‘theft,’ ‘false token,’ and ‘evidence of similar representations' and set forth Hornbook principles.

It was not error to instruct the jury that ‘the corroboration required upon a charge of obtaining money by false pretense must be a similar alleged false pretense.’ It was logically called for by the instruction requested by appellant and given by the court.6 Neither was it error to give Caljic instruction No. 8.7 It is a classical, cautionary warning to a jury not to apply such instructions as are not applicable to the facts they find.

Appellant's Proposed Instructions Rejected: Not Prejudicial.

Appellant requested the court to instruct the jury that ‘if you find from the evidence that each deal in this case bore the color and was that of a normal civil contract, you must acquit the defendant’ and that ‘defendant is not to be convicted solely because of dissatisfaction of a person making a loan or because of his business difficulties'; also, he requested an instruction defining a loan; that a borrower must pay the amount due in such money as is current when the loan becomes due, etc. None of them was pertinent to the issue of theft. All were calculated to confuse the jury by commanding an acquittal if they found each deal bore some specified aspect.

Complaint is made of the court's refusing to give defendant's instruction No. 6.8 It was covered by Caljic 231, given.

Appellant requested the court to give two instructions relating to novation and the release of appellant by one of the complainants. They were not proper. The thefts were committed at the times appellant received the money or the trust deed or there was no theft. Acts of the accusers pretending to effect a release or acquittal of the accused were not relevant to his guilt.

Exhibits Attacked.

Exhibit 43 was a copy of the receipt given to Mrs. Russ on November 19, 1948, made by her from memory. Appellant asserts he was prejudiced thereby and by the court's refusal to strike the parol testimony with respect thereto even though the exhibit was stricken. The original writing was taken from the lady by appellant, and in less than 15 minutes she made the copy. After the witness had testified that the copy was a correct reproduction of the original receipt and contract of appellant, it was properly admitted as proof of a ‘memorandum of the agreement subscribed by the defendant.’ Penal Code, § 1110. Appellant then complains that he was prejudiced by the order striking the exhibit and denying his motion to strike the testimony with reference to it. If the court struck the exhibit, appellant cannot complain; he requested it. If the court refused to strike the testimony with regard to the exhibit, appellant cannot complain for he elicited it.

It was not error to receive in evidence the Lee trust deed and chattel mortgage. They were proofs of the very crime alleged in count VIII and for which appellant was on trial. There was no error in admitting exhibit 48 in order to show the encumbrances of record against the property described in the trust deed to Mrs. Russ which recited merely ‘subject to encumbrances of record.’ It proved the inferiority of her security.

The testimony of Mr. Butts with reference to the investigations by the Retail Credit Association of prospective members was properly excluded as hearsay and immaterial.

Appellant asserts that he was prejudiced by the court's denial of a ‘full cross-examination’ of Mrs. Russ. The voluminous record of her testimony belies such claim. Appellant was not unduly restricted as to such examination.

The Prior Felony.

Appellant was not improperly charged with the prior felony. He had committed it and the law authorizes the inclusion in any information or indictment of the charge of former crimes. People v. Dunlop, 102 Cal.App.2d 314, 316, 227 P.2d 281. He admitted having served a term in a federal prison in Colorado.

Motion for New Trial.

Appellant contends that he was denied the right to argue his affidavits; that the court shielded the district attorney in tampering with the evidence, derided appellant's efforts to be heard, ‘poked light at defendant's affidavits'; that the judge tried ‘to trick defendant into the loss of his procedural rights' and ‘cut the defendant short.’ The record discloses a continued series of patient continuances of the hearing of the motion from the date of its first setting on May 31, 1951, to August 15, when the motion was denied. Such continuances were for the accommodation of appellant. On August 15 oral testimony was heard. At all times his counsel was present. Many affidavits were filed. The judge is presumed to have read all affidavits. There is no proof that he did not do so.

The Case of Mrs. Neal.

Appellant asserts with renewed emphasis that he was denied his constitutional rights in respect to the trial of the accusation of Mrs. Neal. His assignments as to the trial of her charges are substantially a repetition of those made concerning the Russ trial. For that reason a discussion involving the same principles and similar situations will be eschewed. However, it will not be amiss to advert to some features of her affidavit in reply to affidavits submitted by defendant in support of his motion for a new trial. After the information had been filed, Mrs. Wingrave and the Butts couple found their way to the North Carolina home of Mrs. Neal. She deposed that she was confined to her bed with a bad heart and refused to take a ride with her visitors. She had read their affidavits and denied she had discussed any matters mentioned by them except the portion ‘devoted to affiant's changing her testimony to the effect that she granted her consent for the use of her money’; that most of their conversation was a play for her sympathy by telling her how they and appellant had been subjected to criminal charges; that they brought forth a seven page affidavit for her to sign and when she scorned their request, one of them threatened her with ‘means either fair or foul’; that they drove an expensive car, but pleaded for her to keep them over night because they had only $14.

Appellant's ‘newly discovered evidence’ is asserted to be a letter written by Mrs. Wingrave and signed by Mrs. Neal whereby the latter authorized a cancellation of the El Patio theater transaction and a use of her money for general purposes. Inasmuch as such letter was not presented to the trial court, it has no bearing on appeal.

It was not error for the court to admit the testimony of Mrs. Neal given in the preliminary examination. Appellant was there, attended by his counsel who was privileged to and did cross-examine Mrs. Neal. Section 686 of the Penal Code authorizes the use of testimony given by a witness before the committing magistrate in the presence of the accused. Therefore, appellant was not denied the right to be confronted by the witnesses.

Appellant's contention that the deputy district attorney committed a fraud on the court by reading the testimony of Mrs. Neal, knowing it to be false, is likewise without merit. No section of the state or federal constitution forbids such reading. Mrs. Neal never said it was false; it was presumptively true until the jury might determine its merit. They decided it was true.

All other legal problems presented on counts V and VI have been covered by the discussion of counts VII and VIII.

The appeals from the verdicts are dismissed as nonappealable. The judgment and the order denying the motion for a new trial are affirmed.

FOOTNOTES

1.  Prior to the trial, 23 of the original 29 counts were dismissed under section 995 of the Penal Code. Counts 2 and 19 were dismissed on motion of court and district attorney, respectively.

2.  No accusation was filed on the trailer money.

3.  You are instructed that in addition to the classification of evidence as direct evidence and circumstantial evidence there is another classification of evidence, to wit, primary evidence and secondary evidence.Primary evidence is defined as follows. Primary evidence is that kind of evidence which, under every possible circumstance, affords the greatest certainty of the fact in question. Thus, a written instrument is itself the best possible evidence of its existence and contents.Secondary evidence is defined as follows. Secondary evidence is that which is inferior to primary. Thus, a copy of an instrument or oral evidence of its contents is secondary evidence of the instrument and its contents.

4.  Duly qualified experts may give their opinions on questions in controversy at this trial. To assist you in deciding such questions, you may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. You are not bound to accept the opinion of an expert as conclusive, but you should give to it the weight to which you shall find it to be entitled. You may disregard any such opinion, if you find it to be unreasonable.

5.  In a prosecution for theft by false pretenses, if it is shown that the defendant practiced a fraud of a kind regarded by law as being a false pretense, and with the intent to deprive another of property, it is immaterial whether he did so to obtain property for himself or his own possession, or to accomplish its delivery to another person or organization either for the benefit of that other person or organization or for the benefit of himself.

6.  You are instructed that the corroboration required in order to establish the crime of theft by false pretense is corroboration of the making of the pretense. Therefore if, in this case, you find that there was no corroboration of any alleged pretense, or representation, you must acquit the accused of theft by false pretense or fraudulent representation.

7.  The court has endeavored to give you instructions embodying all rules of law that may become necessary in guiding you to a just and lawful verdict. The applicability of some of these instructions will depend upon the conclusions you reach as to what the facts are. As to any such instruction, the fact that it has been given must not be taken as indicating an opinion of the court that the instruction will be necessary or as to what the facts are. If an instruction applies only to a state of facts which you find does not exist, you will disregard the instruction.

8.  While the charge of grand theft may be proved by evidence which shows the obtaining of money by false pretences, or may be shown by evidence of larceny by trick and device, it cannot be proved by a combination of the elements of both of said offences. Before the defendant can be proved guilty, the commission of the crimes must be proved beyond a reasonable doubt by evidence either of the obtaining of money by false pretence or of larceny by trick and device; but it cannot be proved by a combination of the elements of both offences.

MOORE, Presiding Justice.

McCOMB and FOX, JJ., concur.