Los Angeles herald., 1892-01-24
DEMURRERS DOWNED
The Bogus Mortgage Men
Must Stand Trial.
Judge Smith Decides Against
the Demurrers.
Some Interesting Points Covered by
the Decision.
why tho Jemurrers Were Overruled.
The Legal Points Ivolved.
The Case Against
Stump.

Inc uemurrer6 nled Dv v. II. Norton,
J. K. Stump, Lyman Ayre, Charles
Ms4gan, E. III. Boyd and G. w. Gilbert
to the indictments found by the grand
jury, were knocked out by Judge Smith
yesterday, and the defendants will have
to stand trial. The indictments set
forth that the defendants obtained prop
erty by false pretenses, the scheme they
are alleged to have worked successfully
being very similar to the bogus mort
!. gage racket, in which they, Baker and
Stump were implicated. The property
was partially in Orange and part in
Los Angeles county. All the defendants,
except Gilbert, have been arrested.
Aver and Stump are in Jail, not having
been able to secure bondsmen.
Judge Smiths decisions follow:
People Vs. Norton, Stump, Aver, Nor
gan and Boyd:
The indictment charges the defend
ants with obtaining property by false
pretenses.
Defendants assign several causes in
their demurrer.
The ret we notice is the contention
that the offense is not alleged to have
been committed in Los Angeles county,
state of California. After setting out
the county and state and by way OF in
dictment describing the land as in Los
Angeles county, state of California, the
indictment charges that the defendants
did then and there knowingly, design
edly, etc., make the representations al
leged to be false, and upon which the
party, Baldwin, relied, ETC., and among
other things in setting forth these repre-
sentations, the pleading described land
in Orange county, in this state, and fol-
lowing with the words then and there"
are used in alleging that the party re-
lied upon such representations and
parted with their property, etc. Now if
''then and there" in the part OF the in
dictment following the description of
the land in Orange county, refer to
Orange county, then the most that can
be claimed is that part OF the acts con-
stituting the otfense transpired in Los
Angeles county and part in Orange
county, bringing the case within section
7S1, penal code, which provides that
when an offense is committed in part of
one county, and in part in another, the
jurisdiction is in either.
1t is urged that the facts set forth do
not constitute public offense, and the
contention is that the party defrauded
was in position where he had access
to the records and the land itself, and
that he could have ascertained its con-
.dition, and that it was his duty to do
SO, and therefore he had no right to
rely on such representations; that he
was equally at fault for the fraud, and
so no crime can be imputed to defend
ants.
The authorities do not sustain this
position. Mr.. Wharton, in his work on
criminal law, section 1886, says: sit
has been repeatedly held that it mat
ters not how patent the falsity of a
pretense may be if it succeeds in de-
frauding."
See also People vs.. Jordan, 66 CAL,
page 10, where it is held, ''The pre-
tense need not be such as cannot be
guarded against by common prudence"
The contention of counsel has to do
more with the proof as to whether the
party relied upon the representations,
and was thereby induced to part with
his property, for if the representations
were SO absurd and irrational as to
challenge the credulity of the party, it
might we'll be doubted if he believed or
relied upon them.
This Is Tor the ]ur7 TO pass upon.
I do not think the points raised by
the demurrer well taken, and the same
is overruled.
B. N. SMITH, Judge.
The defendant, G. E. Norton, was
present when the decision was rendered,
upon being arraigned pleaded not guilty,
and the cause was placed on the trial
calendar.
In the cases against &. w. Gilbert and
Il. IL. Boyd, who also filed demurrers,
the court rendered the following de-
cislon.
1t is claimed by counsel for defend
ants that the Indictment should recite
that the grand jurors accuse .'by this in
dictment;" that emitting the words ''by
this Indictment" renders it fatally de-
fective. We think otherwise, and this
upon the plainest principles of pleading.
1t is not what you denominate a plead
ing that gives it place or character, but
upon the substance and allegation it
contains besides, subdivision 2 of Sec
ton $50, penal code, az,d section $50
same code, settle the question. Again
it Ia claimed that the alterations disclose