PEOPLE v. MARSH

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District Court of Appeal, Fourth District, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. John MARSH and John Crane, Defendants and Appellants.*

Cr. 1804.

Decided: May 25, 1962

Bertrand L. Comparet, San Diego, for appellants. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

This is an appeal by defendants Marsh and Crane from judgments of conviction of attempt to commit grand theft, conspiracy to commit grand theft, conspiracy to violate section 2141, Business & Professions Code, and from an order denying defendants' motion for a new trial. Defendant Lallas Bateson did not appeal.

FACTS

The physical activities of defendants as well as other physical facts are largely uncontested. The conflicts in the evidence are confined largely to the curative qualities of the device offered to be sold or loaned and to defendants' asserted belief therein, and in one instance to sexual intimacy.

Without attempting to elucidate the enormous detail of evidence produced over four weeks of trial and occupying over 2,000 pages of transcript, the record shows, in general essence, that none of defendants were at any time licensed to diagnose, prescribe for or treat diseases or ailments of any kind in either human beings or animals; that defendants were working together to obtain money from people having real or imagined ailments. For this purpose they represented to numerous people that defendants possessed an electrical machine developed in part by a person named Raymond Royal Rife and in part by defendants Crane and Marsh; that it would cure cancer, sore throat, foot fungi, female disorders, colds, influenza, various types of virus, mumps, boils; staphylococcus infection; eye cataracts, ear fungi, leprosy, arthritis, pneumonia, sinus infection, bursitis, heart ‘infection,’ excess white corpuscles, ‘leveling’ body chemicals, leukemia, nephritis, tuberculosis, et cetera; that defendants were a non-profit group; that the ‘loan’ of the machine to the victim was for a ‘donation’ equal to the cost to defendants of building the machine; that it was a ‘loan’ in order to avoid charges of ‘sale’ by the Food and Drug Administration; that hundreds of people in the vicinity of San Diego had been helped by the machine; that the cost was $175 for the simpler machine and $300 for the tube type machine and for a more expensive type, $2,000. The total amount collected by defendants from various victims is not shown by the evidence. The $175 machines were identical in design with a commercial product used commonly by TV and radio servicemen and selling at retail for $49.95.

The machines have no therapeutic value. After learning of the defendants' operations the State Board of Health and the Food and Drug Administration investigated, had their agents make contact with defendants and secured evidence of overt acts. The indictment and conviction followed. Bateson was granted probation and Crane and Marsh were sentenced to state prison. Crane and Marsh appeal.

Defendants' evidence consisted principally of testimony of witnesses who thought they had been cured or helped by one of the machines, of extensive recounting of contacts with asserted doctors of medicine and experiments by such doctors, and of what defendants had been told by such doctors.

Marsh testified, inter alia, that he told others that he saw a ‘Prince’ and ‘Princess' Nesaum arrive in a space craft from the planet Uranus, that he had known ‘Prince’ Nesaum on the planet Uranus; that he, Marsh, received training from a teacher, a scientist and a doctor from outer space; that some of the materials in his earlier electronic machines came from another planet; that ‘Prince’ Nesaum said he came from the planet Titan of the 359th galaxy called the Wolf, 8 1/2 light years away; that he met a Joe Fetterman and family who said they came from the planet Venus; that his, Marsh's, ability in painting was derived from the color emanations of the spectrograph of Uranus.

Crane testified, inter alia, to having studied at the University of Southern California, University of Alaska, Riverside College, Oceanside College, University of Arizona, Arrow Industrial Technical Institute; that he had had 8,000 hours of apprentice training and 15 years of night school at Lockheed Aircraft, had spent 7 1/2 years reevaluating the research of Dr. Raymond Royal Rife; that he is a journeyman machinist; that he is familiar with 35 trades; that he wrote the instruction manuals for Ryan Electronics Division; that he did the electronic circuit packaging on the Atlas missile tracking system; that he was chief engineer of Roach Dillon Engineering Corporation designing jet engines, was president and general manager of Rife Laboratory, Incorporated and of Allied Industries and of Rife Virus Microscope Institute; that he is a member of the Society for Automotive Engineers, American Society for Metals, San Diego Bio-medical Society, and Society of Plastic Engineers. He gave a considerable number of impressive sounding job titles he said he had held in various manufacturing organizations. He finally admitted on cross-examination that he held no degree from any recognized school, that he held no license as any kind of engineer, that he had not in truth studied medicine at the University of Alaska or anywhere else. No officer of any of the various companies he said he had worked for appeared to verify either his job, work or qualifications in such asserted positions.

Fourteen witnesses testified that they had used one of the machines and that they had been relieved of some ailment. None of them were qualified to diagnose the nature of the illness. Only four named any doctor who had treated them and none of the doctors, named or unnamed by these witnesses, were called to verify the asserted illness. No qualified doctor nor bacteriologist was called to verify defendants' claims.

HEARSAY STATEMENTS TO DEFENDANTS

Defendants first contend that error was committed in refusal by the trial court to admit into evidence certain asserted letters from certain asserted ‘doctors' to show grounds for good faith belief by defendants in the efficacy of the electrical devices. More than a dozen doctors were named, and reference was made to more than 100 in the United States, as having had some asserted experience with the machine. Efforts were made by defendants to introduce into evidence alleged statements supposedly made by some of these persons as to their experience with the machine in question. While defendant Crane referred to some of them as ‘medical doctors' and to most of them merely as ‘doctors,’ no offer was made to prove that they were in truth licensed or graduated doctors of medicine or that they had had any training or experience in electronics in the medical or bacteriological field. No effort was made to take the deposition of any one of the so-called medical doctors. No medical doctor nor any person licensed or showing any graduate degrees in the field of bacteriology was called by defendants.

As to the written documents, there was no offer of proof that any one of them could be identified as authentic in having actually been signed by the person purporting to have signed them. As far as the offer of proof is concerned, every one of them could have been a forgery, possibly concocted and written by one of the defendants. The objections of the prosecution repeatedly called these matters to defendants' attention. The trial court itself summed up the basis of the various objections in the following language:

‘Wait, before you go any farther, the vice of this thing is you want to introduce, albeit for a limited purpose, a report from some doctor on a letterhead or a piece of paper that bears the name of a doctor. There is no way that the prosecution could possibly cross-examine on the authenticity, the veracity or the qualifications of the person making the report, that is the reason for the rule.’

While it is true that information from a third person, reasonably believed to be true by a defendant may, under proper circumstances, be admissible for the limited purpose of showing state of mind of the recipient of the information (Wigmore on Evidence, 3rd Ed. Vol. VI, p. 235), nevertheless, we are convinced that such evidence ought not to be received without some proof of authenticity, i. e., that the statement was in fact made by the person purporting to have made it.

The continued reference by defendants to numerous persons with the use of the title ‘doctor’ had the tendency to impress the jury with the thought that men of high medical learning had experimented with and approved the usefulness of the machine in combatting disease. But when the offer of proof was made, it did not purport to show that any one of these persons had had, either actually or within defendants' knowledge, the kind of training which would fit them to test the machine's effectiveness on bacteria or virus. Thus, no foundation was laid to show that a reasonable person standing in defendants' position, might have placed some reliance on their purported statements. No attempt was made to show verification of the training background nor even to show that the men referred to were in any way entitled to bear the titles ascribed to them. None of these men were produced. No depositions were produced. ‘Dr.’ Royal Rife, whose deposition was sought even though he was residing in Tijuana, only 17 miles away, turned out to bear the unverified title ‘Dr.’ only as some kind of asserted physicist. Why his deposition was not presented, though taken, is not clear from the record, although there is some suggestion that he failed or refused to sign it. All these and many other matters were sufficient to reasonably arouse suspicion in the mind of the trial court that the real purpose of the defendants was to get into evidence non-authentic documents from nonauthentic persons, whose qualifications had not been shown, thus confusing the minds of the jurors with impressive sounding but wholly unverified titles, regardless of limiting instructions. We are convinced that the trial court, under all the circumstances, was not in error in insisting on authentication of both documents, persons and titles as a foundation for admission.

SEARCH AND SEIZURE

Defendants next contend that the trial court denied defendants their constitutional rights in refusing to order return of certain personal property seized by the arresting officers at the time of the arrest.

The defendants had made a motion before another department of the superior court for return of this property. That motion was denied, since all of it, depending on the turn of the evidence, was potentially usable either in the case in chief or on rebuttal. The motion before the trial court here was informal in character, not accompanied by evidentiary material to show the lawfulness or unlawfulness of the seizure. None of the material was offered in evidence by the People. Access to the material for the purpose of determination by defendants if any of it was usable by them as lawful evidence was not denied. The suggestion was made by the court that if they wished to move the introduction of any particular document they should do so. This carried with it the right to look at the material to see if any of it could qualify as evidence. Defendants made no motion for permission to examine such material nor did they offer it in evidence. There is no merit in the point. (People v. Combes, 56 Cal.2d 135, 146[10], 14 Cal.Rptr. 4, 363 P.2d 4; People v. Schmitt, 155 Cal.App.2d 87, 102, 103[3], 317 P.2d 673.)

OVERT ACTS

Defendants next contend that the overt acts were not proved. With this we cannot agree. There is overwhelming circumstantial evidence that all three defendants acted in concert, by agreement to carry out a common scheme of obtaining property by fraud and to cause persons suffering from real or imagined illness to be treated by the worthless electronic device. Proof of a conspiracy may be by circumstantial evidence. As was said in People v. Steccone, 36 Cal.2d 234, 237, 238[2, 3], 223 P.2d 17, 19, quoting from People v. Sampsell, 104 Cal.App. 431, 286 P. 434,

‘As a general rule, a conspiracy can only be established by circumstantial evidence ‘for, as the courts have said, it is not often that the direct fact of an unlawful design which is the essence of a conspiracy can be proved otherwise than by the establishment of independent facts, bearing more or less closely or remotely upon the common design (5 Cal.Jur. 521); and it is not necessary to show that the parties met and actually agreed to undertake the performance of the unlawful acts (citing authority), nor that they had previously arranged a detailed plan * * * for the execution of the conspiracy.’'

The claim that defendants obtained the money on a purported ‘loan,’ and that the treatment consisted of ‘training’ in the use of the machine was mere subterfuge. The trial court or jury was not compelled to believe the statements of defendants. Actually, the word ‘buy’ was used by defendant Marsh several times. Once the conspiracy is proved, the overt act binds all its members. (People v. Pierce, 110 Cal.App.2d 598, 610[13–16], 243 P.2d 585; People v. Pacheco, 194 A.C.A. 191, 196–197[5], 14 Cal.Rptr. 840.)

JURY INSTRUCTIONS ON INTENT

Next, defendants contend that the instructions on intent were prejudicially erroneous. They do not complain that the instructions on specific intent as applied to counts 1 and 2 were error but do contend that the instructions relating to count 3 (Conspiracy to Violate Business and Professions Code section 2141) were prejudicially erroneous. On this subject the jury were instructed first on the prohibitions contained within Bus. & Prof.Code sec. 2141. They were instructed fully on the law of conspiracy, including the necessity of

‘* * * an agreement or understanding between two or more persons that they will commit an unlawful act, that is, that they will combine together to accomplish by the united action a criminal or unlawful purpose, or a purpose, which is not in itself criminal or unlawful, by criminal or unlawful means, to accomplish which agreement and in furtherance thereof an overt act is committed by one or more of the parties to the agreement. In other words, a conspiracy is a criminal partnership, the design and object of which is to do an unlawful act or series of unlawful acts, or to do a lawful act or a series of lawful acts by unlawful means, accompanied by an overt act to effect the object of such agreement.’ (Italics ours.)

This instruction describes and impresses on the mind the necessity of specific intent far better than any instruction using the term specific intent could possibly do. It says in plain language that any layman can understand just what the parties must agree and intend to do. It is devoid of expressions necessarily used in the ordinary descriptions of specific intent which trial judges so frequently find that juries have trouble in following. We are unable to see how, by following this instruction, the jury could fail to understand the necessity of specific intent as jurists and lawyers understand that term. The mere fact that, earlier in the instructions, the court gave an instruction on specific intent limited and applied to the attempt and conspiracy to commit grand theft, does not detract from the clarity of the conspiracy instruction. As was said in People v. Bowman, 156 Cal.App.2d 784, 797(6), 320 P.2d 70, 78,

‘Specific intent in a charge of conspiracy means that the conspirators must have the intent through concert of action to do an unlawful act, or to do a lawful act by unlawful means. The essence of the offense lies in the intent; an intent to commit a specific unlawful act or to commit a specific lawful act by unlawful means.’

This, in essence, is exactly what the jury were told in the instruction given. Defendants do not direct our attention to any request on their part for a more specific elucidation of specific intent. We see no reason to suppose there was confusion or misunderstanding by the jury on the subject.

MARSH'S SEXUAL ACTS

Defendants contend that the evidence of immoral conduct by defendant Marsh with a woman he was treating for sore throat was prejudicial error. First, it must be noted that this evidence came in as portion of her description of his method of treating her. According to her testimony, he stated to her that his sexual fondling was a part of his treatment to cure her sore throat. No objection was made by defendants to this testimony. Error under such conditions cannot now be claimed. (People v. Romano, 197 A.C.A. 669, 683[15], 17 Cal.Rptr. 399.) It was clearly relevant, in any event, on the question of defendant Marsh's asserted good faith in alleged healing. Defendants cite People v. Burness, 53 Cal.App.2d 214, 220–221, 127 P.2d 623; People v. Wells, 33 Cal.2d 330, 340, 202 P.2d 53; People v. Merrill, 104 Cal.App.2d 257, 263–264, 231 P.2d 573; and People v. Smith, 189 Cal. 31, 35, 207 P. 518, in support of their contention. But none of those cases bear any analogy to the case at bar. In each of those cases the material ruled inadmissible did not bear on the subject to defendants' good faith. Here it clearly did. Objections were made to some rebuttal evidence along the same line after defendant Marsh had denied certain portions of the testimony last above referred to. Since the original material referred to was relevant to the claim of good faith in treatment intent, rebuttal of Marsh's contention that the witness was herself the aggressor was also relevant. We find no error here. Defendants complain that prejudicial insinuations were contained in questions asked by the district attorney of character witnesses for Marsh regarding Marsh having been excommunicated from the Mormon Church because of immoral conduct with women. The questions clearly did not go outside the record of relevant evidence already before the court. We find no error.

Defendants complain of an instruction to the effect that failure to deny an accusation may be considered as an admission that the accusation was true. This related to testimony that when confronted in the Mormon Church with accusations of immoral conduct Marsh failed to deny the accusations. This whole matter related to Marsh's asserted good character. It was discssed before the jury by both sides. We do not find any reason to believe that the jury misunderstood the subject to which the instruction related. We find no prejudicial error. (People v. Romano, supra, 197 A.C.A. 681–682 [4–10], 17 Cal.Rptr. 197 A.C.A. 681–682[4–10], 17 Cal.Rptr.

DISTRICT ATTORNEY'S ARGUMENT

The district attorney, in his argument, referred to the claim of defendants that in securing tape recordings of defendants' conversations with state agents, defendants were ‘baited.’ Then he stated,

‘* * * I leave that to your judgment, how much they were baited, because we heard those same kind of statements from other people long before we had agents working in this case, where the same things were said to them, but look how they came around and said, ‘Well, we never said it.”

The district attorney was here referring to evidence of other treatments long antedating the one for which tapes were made, of which former treatments and negotiations there was only the oral testimony of witnesses. Nothing in this statement appeared to go outside the record testimony.

The judgment and order denying the motion for new trial are affirmed.

SHEPARD, Acting Presiding Justice.

COUGHLIN, J., concurs.