By indictment Dr. Norman W. Schmitt and Dr. R. Evelyn Alvord were accused of conspiracy (Pen. Code, § 182, subd. 1), and of conspiring with Faye Reed to violate section 484 of the Penal Code (theft) and section 17500 of the Business and Professions Code (false advertising). The indictment set out 13 overt acts allegedly committed in furtherance of the conspiracy. Upon a jury trial, defendants were found guilty of conspiracy to commit grand theft. They made motions for a new trial, which were denied. Proceedings were suspended as to Dr. Alvord and she was placed on probation for three years on condition that she pay a $1,000 fine. Proceedings were likewise suspended as to Dr. Schmitt and he was placed on probation for five years on condition that he serve the first year in the county jail and pay a $5,000 fine.
The conviction of Dr. Schmitt was based upon evidence of the following facts. He is a licensed chiropractor and has practiced in Los Angeles since 1936. We shall refer to him hereinafter as defendant. From June 1953 until March 1955 Faye Reed worked in his office as a receptionist and nurse; her duties included the taking of patients' case histories and the giving of treatments with a machine called an oscilloclast. Dr. Alvord is licensed as an osteopath in Missouri and Kentucky. Although a resident of California since 1945, she has not applied for a license in this state. Beginning in 1953, Dr. Alvord analyzed blood samples which Dr. Schmitt sent to her home in Costa Mesa, using a machine called a radioscope. The radioscope and the oscilloclast will be described at a later point in our opinion.
The following day, Mrs. Stamps went to Schmitt's office, where Mrs. Reed extracted a sample of her blood. The blood was wrapped in tinfoil and sent to Dr. Alvord. Several days later, Schmitt told Stamps that he had good news from the laboratory. He said that Mrs. Stamps had an enlarged heart, tuberculosis, and a scattering of cancer in the colon; the growth on her buttocks was not a cancer but was a fatty tumor. He stated that he could guarantee a cure after two or three months' treatment with an oscilloclast. Shortly thereafter, Mrs. Stamps began taking oscilloclast treatments at defendant's office; she went several times a week and paid $2.50 a treatment. In January 1954, Mrs. Stamps had another blood test and defendant told her husband that the tuberculosis was clearing up and her heart was returning to normal. When Stamps complained that the growth on his wife's buttocks was increasing in size and causing her severe pain, Schmitt said: "Oh, that is just fine. That shows that this machine, this electricity is drawing all the cancer from the body. It is killing the cancer and drawing it into this fatty tumor." The treatments continued until June 1954, when Mrs. Stamps could no longer sit down, due to the size of the growth; defendant told Stamps that his wife was overcharged with electricity and needed a rest. By that time, Stamps had paid defendant nearly $200 for blood tests and treatments with the machine. August 15, 1954, Stamps telephoned defendant about his wife's condition and defendant advised him not to call Dr. Byrne. The following evening, Schmitt paid a visit to Mrs. Stamps in order to see the growth, which he had not previously examined; it was then the size of an orange. He cut some of it off and told Stamps that the wound would heal in a few days, that the oscilloclast had drawn all the cancer in Mrs. Stamps' body into the fatty tumor, and that she would never again be troubled with cancer. Early the next month, however, Mrs. Stamps underwent an operation
Hazel Snyder consulted defendant in April 1954, giving a history of pain in her side and a lack of pep and vitality. Defendant said "We will take a blood test and see what is wrong with you." A few days later he read to her from a sheet of paper what he said were the results of a laboratory analysis of her blood showing that she had a cancerous irritation originating in the colon and cancers in the thyroid and neck. Schmitt told her that he had had 22 unsuccessful operations for cancer of the rectum, but was cured with the oscilloclast. He stated that a year's use of the machine would cure her condition. Thereupon Mrs. Snyder began taking regular treatments at defendant's office, for which she paid a total of $500. She discontinued the treatments after a year and consulted Dr. Charles Muller, a qualified physician, complaining that she still had a pain in her side and felt tired and worn out. Dr. Muller gave her a complete physical examination. He testified that Mrs. Snyder was suffering from a mild liver irritation, had a normal (though enlarged) thyroid, and was overweight. He found no evidence of cancer. After treatment for her overweight condition, Mrs. Snyder's health improved considerably.
In the latter part of 1954, Mr. and Mrs. Enrique Patt took their children, Bonnie and Lorry, to see defendant. Schmitt told Mrs. Patt that he didn't like Bonnie's complexion and suggested a blood test. He took blood samples from Bonnie and the other members of the Patt family. Shortly thereafter, he told Mrs. Patt that Bonnie had a low blood count, which was due to a dormant cancer in the spleen and a tubercular infection in the liver, but that the oscilloclast would restore the electrons in her daughter's system to normal within six to eight months. He said that Mrs. Patt had low grade tuberculosis in the chest, sinus and pelvis, and benign tumors in the uterus and cranium. He also said that Lorry was suffering from malfunction of the endocrine glands and osteomyelitis of both eyes; there was some nonmalignant cancer in Lorry's spleen, bone marrow and cranium. The Patts rented an oscilloclast from defendant at a rental of $30 a month and used the machine for several months at their home.
Mrs. Swannie Schaafsma brought her son, Lauren, to defendant's office sometime in 1953. Lauren was unable to walk or talk and was confined to a wheel chair; he was 3 1/2 years old. His mother told defendant that Lauren's condition had been diagnosed as cerebral palsy but Schmitt said that a blood test would determine what was wrong with him. Defendant took a sample of the boy's blood, and when Mrs. Schaafsma returned for the results of the laboratory analysis, defendant told her that Lauren had tuberculosis and adhesions of the spine and that scar tissue in his central nervous system had affected his reflexes. Schmitt said that Lauren "can be cured within a year, after a year's treatment he will be walking." The boy received treatments with the oscilloclast during the ensuing year, for which Mrs. Schaafsma paid between $400 and $500. Additional blood tests were taken every month and after each test defendant told Mrs. Schaafsma that her son was getting better. She testified that Lauren's condition at the time of the trial was the same as it had been when she first consulted Schmitt, except that he had grown.
A similar series of events was described by Mrs. Clare Spalliero, who took her son, Butch, to see defendant in October 1953. Mrs. Spalliero told defendant that Butch was a spastic and was unable to talk, and asked him if he could help; Schmitt replied that as soon as he took a blood test, he could tell whether he could help or not. Several days later, Schmitt told her that Butch had tuberculosis and cancer of the brain and spleen. He said that the boy would be completely normal after a year's treatment with the oscilloclast. Butch took the treatments for nearly a year and a half, for which his mother paid defendant about $400.
The Schaafsma and Spalliero boys had been examined by Dr. Robert Sedgwick in 1952. Dr. Sedgwick, a qualified physician specializing in neurology, testified that Lauren Schaafsma was afflicted with cerebral palsy, which was due to the failure of his brain to develop; he found no evidence of tuberculosis or spinal adhesions. He stated that the Spalliero boy was suffering from maldevelopment of the brain, and that he had found no indication of cancer or tuberculosis. It was his opinion that both children had sustained irreparable brain damage and that medical science had no known cure for their condition.
Mrs. Hermine Szabo went to see defendant in December 1952, complaining that she felt tired and run down. Defendant said he wanted to have her blood analyzed and Mrs. Szabo submitted to a blood test. A few days later Schmitt told her that she was in very bad shape, that her kidneys were bad, her spleen was deteriorating, and that she had cancer of the liver; he told her that he could cure her but that it would take a long time. She took several treatments with the oscilloclast and then consulted Dr. Robert Weber, who was a qualified physician. Dr. Weber gave Mrs. Szabo a complete physical examination. He testified that he found no symptoms of cancer.
Richard Lewis visited defendant's office in January 1954, complaining of pains in his foot. After a series of foot adjustments had proved unsuccessful, Schmitt examined Lewis' feet through a fluoroscope and told him that he needed a blood test because he had either tuberculosis or cancer of the bone. Schmitt took a sample of Lewis' blood and began giving him treatments without waiting for the results of the analysis. Shortly thereafter, defendant told Lewis that he had cancer, tuberculosis of the brain, and tuberculosis of the foot, male organ and liver. After 15 oscilloclast treatments, which did not cure the pain in his foot, Lewis consulted Dr. Paul Pernworth, a qualified physician. Dr. Pernworth testified that he examined Lewis and found no evidence of cancer or tuberculosis.
As we have said, the blood samples given to defendant by his patients were analyzed by Dr. Alvord with a device called a radioscope, which is a black box containing two electrical circuits, dials, switches, a variable condenser, an electrode or trap door, and some attachments. The radioscope was apparently invented by the late Dr. Albert Abrams, who was the founder of the electronic school of medicine. Abrams thought that disease is a lack of harmony in the electronic oscillations of the human body, that diseased tissue gives off a rate of energy different from normal tissue, and that each disease has its own rate of vibration. Followers of Dr. Abrams use the radioscope to measure the vibratory rate of electromagnetic energy in different parts of the human system.
In using the radioscope, Dr. Alvord was helped by an assistant, a Mrs. Ogle. Dr. Alvord first unwrapped a blood sample from its tinfoil container and placed it in the trap door of the machine, which she then closed. Next she clipped one of the attachments to the side of Mrs. Ogle, who stood in front of the machine with her abdomen exposed. Mrs. Ogle held another attachment in her hand, and touched it to various parts of her body as directed by Dr. Alvord. Meanwhile, Dr. Alvord took a glass wand or conductor and stroked it across the left side of Mrs. Ogle's bare abdomen. While stroking the wand, Dr. Alvord turned the dials on the machine and made notations of the vibratory rates of electromagnetic energy indicated by the machine as Mrs. Ogle touched the attachment to different parts of her body. After determining the vibratory rates, Dr. Alvord referred to an "Atlas" prepared by a Dr. Colson, which correlated the rates of vibration with particular kinds of disease energy. Then she prepared a treatment chart, which she sent to defendant; this chart stated the nature of the patient's illness and gave directions as to the particular part of the patient's body to be treated with the oscilloclast. Dr. Alvord received from Schmitt $10 for the first blood test and $5.00 for subsequent tests.
The oscilloclast is a kind of vibrator. It is a black box, somewhat larger than the radioscope, containing two circuits, one of which is electronic and the other electric. It also has a number of dials and attachments. The electric circuit carries a 60-cycle alternating current, while the electronic circuit is composed of two vacuum tubes; one tube is connected to an oscillator which resonates at about 40 megacycles and the other
A number of expert witnesses, testifying on behalf of the People, gave their opinions as to the scientific value of the radioscope and the oscilloclast. Dr. Moses Greenfield, a nuclear physicist, qualified as an expert on the effect of nuclear energy upon the human body. He testified that the radioscope would not measure any electromagnetic energy emitted by a piece of dried blood for the reason that the radioscope is a closed circuit; electric current cannot flow in a circuit unless there is some source of energy and no energy is exchanged in the machine. The machine would not send any physical signals to Dr. Alvord or Mrs. Ogle and any sensations felt by the latter would be wholly subjective and unconnected with the radioscope. He stated that the power generated by the oscilloclast (5/100th of a watt) is so minimal that the machine could not produce chemical changes in the human body; treatments with the machine would have no more effect than a vigorous rubbing of the skin. David Robbart, a police radio technician, gave similar testimony as to the oscilloclast. He stated that he attempted to measure its power in relation to its electronic output but found the power was so slight that it could not be measured.
Dr. Justin Stein, a physician specializing in the treatment of cancer, testified that at the present time there is no blood test which affords a specific or conclusive diagnosis of cancer. (Dr. Harry Penn, a cancer researcher called by defendant, testified that he is working with a blood serum test for cancer, but that the test has not yet been perfected.) According to Dr. Stein, the only positive test for cancer is a biopsy, which is an examination under a microscope of tissue removed from a patient's body.
A similar opinion was expressed by Dr. Ian Macdonald, who is also a physician and specialist in cancer. Dr. Macdonald also testified that long wave radiation, as used in the oscilloclast, cannot destroy cancer cells, and that the application of 5/100ths of a watt power at a frequency of 40 to 44 megacycles
Dr. Alvord, testifying in her own behalf, stated that she studied electronic medicine at the Electronic Medical Foundation in San Francisco. In performing a blood analysis, she followed the techniques prescribed by the writings of Dr. Abrams and accepted his conclusions respecting the correlation between particular disease energies and electromagnetic vibration rates; however, she did not know whether those conclusions had been confirmed by other research. Although heart action, pain and vitality are not diseases, the radioscope gives readings for them. She never studied nuclear physics but took a six-week course in electronics. She made no independent inquiry about the radioscope and never checked her clinical findings with findings from other laboratories. She stated her belief that the radioscope can detect cancer before it has reached the stage where it can be discovered under a microscope. Except for analyzing blood samples and recommending specific treatments with the oscilloclast, she had nothing to do with either Schmitt's patients or the operation of his office. She was aware that an action was brought against the Electronic Medical Foundation in the fall of 1953 but she never inquired about it as she had too many other things to do.
Defendant likewise took the stand in his own defense. His original specialization was the treatment of foot ailments. After undergoing 22 operations for a rectal cancer, he had his blood tested at the foundation and was cured by a series of treatments with the oscilloclast. This personal experience convinced him of the value of the electronic theory of medicine, which he described as the use of magnetic energy to change body chemistry. He began using the oscilloclast in 1946 and had 14 machines in his office. Before meeting Dr. Alvord he sent blood samples to the foundation for analysis. He was introduced to Dr. Alvord in 1953 by a Mr. West, who was connected with the foundation; he sent blood samples to her because of her speed and efficiency. In diagnosing illnesses and prescribing oscilloclast treatments, he relied entirely on the "Atlas" and on the reports and treatment charts submitted by Dr. Alvord; he always parroted her words to his patients. He never disagreed with her findings and never advised a patient to go to another laboratory because no laboratory could do work which was comparable to hers. It was his opinion that the Spalliero, Capanna and Schaafsma
On cross-examination Schmitt was asked whether, after October 1953, he heard that the Electronic Medical Foundation, of San Francisco, was involved in litigation. Counsel objected to the question on the ground that it was immaterial, but the court ruled that it might have some bearing on defendant's motives. In response to the question, Schmitt testified that he received from Mr. West sometime after March 15, 1954, a typewritten copy of a consent decree of injunction pendente lite in an action whereby the United States of America sought to enjoin the foundation from mislabeling oscilloclasts and radioscopes which were shipped in interstate commerce. He admitted reading the decree, but stated that the document did not dissuade him from using the machines for the reason that the alleged mislabeling had nothing to do with their therapeutic value.
Dr. Winston S. Sibson, a licensed chiropractor called by the defense, testified that he uses the oscilloclast in his practice, though in an adjunctive capacity; he would not use it alone in the treatment of cancer, tuberculosis or cerebral palsy. Four of Schmitt's former patients also testified in his behalf. They stated that they had taken treatments with the oscilloclast and had been cured of various complaints.
All the points raised on the appeal may be discussed under the headings: (1) The court erred in the admission of evidence allegedly obtained by means of an unlawful search and seizure; (2) defendants were not sufficiently advised of the charges against them; (3) the court unduly restricted the cross-examination of witnesses for the People; (4) the court erred in quashing a subpoena duces tecum issued upon defendant's application; (5) the evidence was insufficient to support the verdict; (6) the court erred in instructing the jury; (7) misconduct was committed by one of the People's witnesses; (8) the district attorney was guilty of prejudicial misconduct in his closing argument to the jury.
As to the first point, Schmitt contends that the court should not have received in evidence any of the medical records, papers and equipment which were removed from his office
On April 4, 1955, Faye Reed went to see Bydie S. Woodruff, an investigator for the State Board of Medical Examiners. She told him about the operation of Schmitt's office and gave him the names of some of Schmitt's patients; among the names was that of Mr. Stamps, whom Woodruff contacted the following day. Shortly thereafter, a misdemeanor complaint was issued at Woodruff's instigation, charging defendant with a violation of section 26286.5 of the Health and Safety Code in that he advertised a drug or device represented to have an effect on cancer. We set out a portion of the statute in the margin.
Woodruff testified at the trial that he was careful not to take records pertaining to defendant's foot treatments because he was interested only in records concerning use of the oscilloclast; in searching the case history file, he looked for names mentioned by Mrs. Reed. The following day, he turned over to the district attorney the materials which had been seized but he continued his investigation. He and his fellow officers interviewed about 50 of Schmitt's patients, most of whose names they obtained from the files. Woodruff stated that he mainly interviewed persons who had taken treatments from defendant within the year immediately preceding issuance of the complaint; others were interviewed in order to establish a scheme or design on the part of defendant. It appears that no further action was taken in the misdemeanor case and that on May 31st the grand jury returned the present indictment.
We have made a careful examination of the lengthy transcript in an effort to determine which of the items seized at defendant's office were actually used in evidence. An oscilloclast was placed in evidence by the People, but it appears that the machine was the one which Schmitt had rented to Mr. and Mrs. Patt; one of the machines taken by Woodruff was offered in evidence by defendant. Case histories and blood test reports relating to witnesses for the People were introduced in evidence by the district attorney; the remainder of the case histories were offered in evidence by defendant at the close of the testimony.
Although the record permits a doubt whether the motion to suppress evidence was sufficient to preserve the question for the purposes of an appeal, we prefer to consider the issue on its merits.
It was a proper inference from Woodruff's testimony that the officers were acting in good faith and were seeking physical and documentary substantiation of the charge that Schmitt was guilty of the representations forbidden by the statute. The term "advertisement," as used in the statute, means, among other things, all representations "disseminated in any manner or by any means, for the purpose of inducing, or which are likely to induce, directly or indirectly, the purchase or sale of drugs or devices." (Health & Saf. Code, § 26209.)
There is merit in defendant's argument that even if the search was relevant to the arrest it went to unreasonable lengths. It appears that there was a general ransacking of defendant's offices and that nearly everything in sight was carted away for future examination, but the question here is whether evidence obtained illegally was used against the
There is also no basis for defendant's contention that he was not informed as to the nature of the charges against him and not given an opportunity to answer them.
With respect to the third point, it is contended that the court unduly limited the cross-examination of some of the People's witnesses. In this connection, defendant assigns as error 16 rulings wherein the court sustained objections to questions asked by counsel on cross-examination. As to the majority of these assignments of error, suffice it to say that the questions counsel proposed to ask were objectionable in that they called for hearsay, assumed the truth of facts which were not in evidence, or were as to immaterial or inconsequential matters. No useful purpose would be served by a separate discussion of each ruling. The trial lasted for two months. The court was extremely liberal in permitting cross-examination
One theory of defense adopted by Schmitt's counsel was that his client was being persecuted for his scientific beliefs and that the American Cancer Society, Mrs. Reed and a local television station were conspiring to put him out of business. It appears that Schmitt was arrested during the annual fund-raising drive of the cancer society and that three days after the arrest, Station KTTV broadcast a televised expose of his methods of treatment. Dr. Stein and Dr. Macdonald, who testified as expert witnesses for the prosecution, were officers in the state division of the American Cancer Society. Each stated that he never received any of the society's funds, had no connection with its fund-raising activities, that he did not know Mrs. Reed, and that he was first contacted in relation to the case by Woodruff. On cross-examination, counsel proposed to ask them whether they knew how much money the cancer society had in its bank account and whether they knew that Schmitt's prosecution was being used to publicize the fund-raising drive. Objections to these questions were sustained on the ground that they were immaterial. He offered to prove the society's bank balance but the offer of proof was rejected by the court. As to these questions, his argument is that the purpose of the questions was "to prove the interest of the medical experts who were on the Cancer Panels, and also to show the relationship between the American Cancer Society, and the KTTV Television Program, and Mrs. Faye Reed."
It is also argued that the court erred in sustaining objections
As to the fourth point, defendant asserts error in the granting of the People's motion to quash a subpoena duces tecum addressed to station KTTV. The subpoena sought the production of the station's "financial records, charges, reports, correspondence and memorandum" relating to the abovementioned television broadcast, "including records of payment by American Cancer Society and/or Public Relations agent therefore." The affidavit for the subpoena averred that those documents were material to prove "interest and bias of witness Dr. Ian McDonald, Fay Reed, and others, and the system, plan, and scheme of the American Cancer Society to persecute defendants."
In support of his motion, the district attorney argued that the affidavit was indefinite and insufficient to show the materiality of the documents. The court postponed its ruling until the following morning in order to give counsel an opportunity to file a supplemental affidavit, but no new material was presented. Section 1985 of the Code of Civil Procedure provides that all applications for subpoenas duces tecum shall be accompanied by an affidavit specifiying the exact matters or things desired to be produced, and setting forth in full detail the materiality thereof to the issues involved in the case.
With respect to the fifth point, Schmitt contends that the evidence was insufficient to support the conviction of conspiracy to commit grand theft.
Defendant's attorneys, of course, know full well and recognize that it is not our function as a reviewing court to reweigh the evidence and to substitute other inferences for those reasonably drawn by the triers of fact and that we are limited to determining whether there was any substantial evidence to support the implied findings of the jury. The argument that there was no substantial evidence is unavailing. The testimony of the People's witnesses revealed a consistent course of conduct on the part of Dr. Schmitt, Dr. Alvord and Mrs. Reed. In each instance, Schmitt told the prospective patient that laboratory analysis of a blood sample was necessary in order to make a proper diagnosis. The patient paid Schmitt $15 and a specimen of his blood was sent to Alvord, who analyzed it with the radioscope and submitted her findings to Schmitt. When the patient returned to his office, Schmitt read from papers or told him orally the results of Alvord's laboratory analysis, viz., that he was afflicted with either cancer or tuberculosis or both. Schmitt then assured the patient that he had successfully treated hundreds of similar cases with the oscilloclast and that treatments with the machine would cure the conditions disclosed through the blood test. Most of the complaining witnesses thereupon submitted to a lengthy, expensive and fruitless series of treatments, which were administered by Mrs. Reed. In view of Dr. Alvord's representations as to the reliability of her reports, her knowledge that Schmitt was using them in the treatment of patients and the long continued use of their methods in the treatment of cancer and tuberculosis it was a reasonable conclusion that each had equal responsibility with the other for the representations that were made and that they had but a single purpose in mind.
There was expert testimony which, if believed by the jury, would support inferences that the radioscope cannot measure the electromagnetic energy emitted by a bit of dried blood and that, in any event, a blood test does not afford a specific diagnosis of cancer. The jury could reasonably conclude from the testimony of Schmitt's patients and their physicians that the purported diagnoses prepared by Alvord and repeated by him were false and misleading. There was also expert testimony which, if credited by the jury, tended to show that the oscilloclast was ineffectual in the treatment of cancer. This testimony, together with the circumstances related by Mr. Stamps, would warrant a conclusion that there was no truth in defendant's statements that he had cured hundreds of cancer cases with the machine.
Defendant vigorously maintained at the trial and now argues that he did not intend to defraud his patients and
As to the sixth point, Schmitt contends that the court committed error in the giving and refusal of instructions.
At the request of both the People and defendant, the court gave the instruction which we have set out in the margin.
It is next contended that the court erred in failing to give adequate instructions as to specific intent. The court read section 484 of the Penal Code and gave the instruction that
A great deal of defendant's argument is that he was convicted not of making false statements but of making reckless statements, and of mere negligence. He says that throughout the trial the People sought to prove only the falsity of his statements and that recklessness was dwelt upon only in the final arguments and in the instructions. As we have stated, both defendant and the People requested the instruction which stated that a false pretense must be a false representation of an existing fact known to be untrue or a statement made recklessly and without information justifying a belief that it is true. Defendant says also that if he followed standard methods of procedure (presumably his own procedure) he could not have been guilty of negligence or recklessness, and that this was a question for experts in the use of the machines in question, none of whom were used as witnesses by the
In support of the claim of error, defendant argues that it was the district attorney's duty to anticipate and prevent the improper statement, citing People v. Baker, 147 Cal.App.2d 319 [305 P.2d 97]. The argument cannot be sustained. The case is not in point. The evidence improperly elicited by the district attorney in that case was such as he should have anticipated and warned the witness against. But such is not the case here. The incident occurred during defendant's cross-examination. The deputy could not reasonably have foreseen that Mrs. Spalliero would volunteer an improper statement while being questioned by defense counsel. Furthermore, the court immediately instructed the jury to disregard the answer and embodied its admonition to disregard stricken matter in a formal instruction at the conclusion of the trial. It is to be presumed that the jury followed these instructions and confined its deliberations to a consideration of matters which were properly in evidence. There is no substance to the assignment of error.
The next point raised on the appeal is that the district attorney committed prejudicial misconduct in making reference to the litigation between the United States of America and the Electronic Medical Foundation during his closing argument to the jury. Our attention is directed to the following remarks of the prosecutor: "Let's come out and say this is an agreement between these two defendants whom we are only faced with, of whom we must only consider that this agreement was one of a conspiracy to get money, to get money as the result of representations that were recklessly made, without a justification for believing in them, and then those people that are out there [i.e., other persons using the radioscope and oscilloclast], they are not going to say `Give me your money. This box will tell you what you've got,' they are going to have to put up just like in San Francisco in the face of this injunction of the Federal Government. ..."
Counsel for defendant cited the italicized language as misconduct and requested that it be stricken upon the grounds that the statement was untrue and was not proper rebuttal argument. The deputy stated: "They put good faith in here, in their argument," which counsel conceded. The court then admonished the jury to disregard the prosecutor's statement and added: "I believe the testimony did not show an injunction
Defendant urges that the reference by the prosecutor to the San Francisco litigation constituted misconduct of so serious a nature that its prejudical effect was not cured by the court's admonition. In support of the claim of prejudice, he points out that on the morning of the second day of its deliberations, the jurors requested additional instructions as to the meaning of a unanimous verdict and asked to have the transcript of Alvord's testimony read to them. Several jurors asked to hear her testimony about her knowledge of the lawsuit. This testimony was read to the jury at 1:30 p.m. and at 4:30 the same afternoon the jury returned its verdict.
While we have heretofore referred to the temporary injunction issued in the case of the government against the Electronic Medical Foundation, which uses the radioscope and oscilloclast, and to the questioning of Doctors Alford and Schmitt as to their knowledge of the litigation, little is said in the briefs with respect to the propriety of referring to the litigation at all. This is for the reason that defendant does not now contend that reference to the decree in the cross-examination of the doctors was reversible error, and the further reason that the defense introduced the decree into evidence. On behalf of the defendants in the government's litigation consent was given to the issuance of a temporary injunction. It enjoined against the transportation in interstate commerce of certain things, among them the radioscope and the oscilloclast if they were misbranded. It is sufficient to say of the injunction that it would have been violated by the transportation of a radioscope or an oscilloclast branded or labeled as intended for use in the treatment of cancer, tuberculosis or any other disease.
We must say that we believe all evidence relating to the injunction should have been excluded. Perhaps it had some remote bearing upon the motives of the defendants in continuing to use the machines, but we cannot see that it was deserving of more than passing consideration for that purpose. Moreover we doubt that the prosecution in bringing the decree to the attention of the jury had a single purpose in mind. The fact that the decree enjoined against the transportation in interstate commerce of the radioscope and oscilloclast and other devices branded or labeled as intended for the detection or treatment of disease was, in effect, a denunciation by the government of the use of the machines, which would naturally have made a strong impression upon the minds of the jurors.
One other point remains to be considered. In support of the motion for a new trial, Schmitt's counsel filed an affidavit in which he alleged that following the discharge of the jury, two jurors asked him whether he was going to Texas to defend a Mr. Hoxsey, the founder of the Hoxsey cancer treatment. Attached to the affidavit were copies of newspaper
After giving full consideration to the many claims of error in the trial we have found no disregard of defendant's right to a fair trial.
The judgment and the order appealed from are affirmed.
Wood (Parker), J., and Vallée, J., concurred.
A petition for a rehearing was denied December 2, 1957, and appellant's petition for a hearing by the Supreme Court was denied December 30, 1957.
"A mere expression of opinion or a statement concerning the future is not such a fraudulent representation.
"It is not necessary that the pretense be such as can not be guarded against by common prudence. Nor is it necessary that the fraudulent representation be made by words, if it may reasonably be inferred from a person's acts and conduct.
"Proof of these four facts must be made against the defendant before he may be found guilty of the crime of theft by means of false or fraudulent representations or pretense:
"1. The defendant must have intended to defraud the person named in the information as the one against whom the crime was perpetrated.
"2. Actual fraud must have been committed by the defendant against that person.
"3. Some false representation or false pretense must have been used by [or at the direction of] defendant for the purpose of perpetrating the fraud, and must have been a material element in inducing the owner to part with the property.
"4. The fraud must have been accomplished; that is, the defendant, by means of the fraud, must have induced the owner to part with the property, the owner intending to divest himself of title, and the defendant thus must have obtained the property."
"1. It must be shown that the pretense so used, or some note or memorandum thereof, was in writing, subscribed by, or in the handwriting of, the defendant; or
"2. It must be shown that the false pretense was expressed in language accompanied by some false token or by some false writing; or
"3. The pretense must be proved by the testimony of at least two witnesses or, if by only one witness, the testimony of that witness must be corroborated by circumstances shown in evidence." [Emphasis ours.]
"`A false pretense is such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the person to whom it is made to part with something of value.'"
"In this regard, the question is not whether the electronic technique practiced by defendants was or was not scientifically valid. The sole question is, did defendants in good faith believe that there was therapeutic merit to the technique. Unless the jury find beyond a reasonable doubt and to a moral certainty, that defendants in fact intended to defraud, and that they did not believe in the validity of the electronic technique, then in such an event you must find them not guilty and acquit them."