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

PEOPLE v. SKELLY et al.*

Cr. 2587.

Decided: January 17, 1935

Harold Judson, of Los Angeles, for appellant Douglas L. Skelly. Randall & Bartlett, of Los Angeles, for appellant R. B. Skelly. U. S. Webb, Atty. Gen., and Eugene M. Elson, Deputy Atty. Gen., for the People.

From a judgment of conviction rendered by the trial court sitting without a jury on each of seventeen counts of grand theft contained in an indictment returned against each of the defendants, as well as from an order by which their motion for a new trial was denied, they have appealed to this court.

On behalf of defendant Douglas L. Skelly, primarily it is contended that the evidence adduced against him was so incredible that in its effect it amounted to an insufficiency of the evidence to support the judgment. In addition thereto, it is urged that the evidence produced by the defendants led to an inevitable conclusion as to an ultimate specified fact; and that based upon such assumed fact, a judgment of conviction was contrary to law.

Other than the general statement that each of the defendants was an officer in a company or corporation that did a stockbroker business, and that the prosecuting witness testified that in the conduct of such business the defendant embezzled certain securities which had been deposited by him with such company as collateral security for a loan made by it to such witness, it is unnecessary to set forth herein a résumé of the voluminous facts that were introduced in evidence on the trial of the action.

With reference to the foundational transaction that occurred between said defendant Douglas L. Skelly and the prosecuting witness, the story related by the latter on the witness stand was not of that nature or character that this court may adjudge that it was so inherently improbable of being the truth that in its essentials it should have been disregarded by the trial court. And that court, with all its attendant opportunities at the trial, having in effect made its implied finding of fact in favor of the prosecution, this court, even if inclined to disturb such finding, is powerless in the premises. In such circumstances, the question suggested by said defendant regarding his lack of criminal liability had the trial court elected to believe the evidence presented by the defendants, rather than that adduced by the prosecution, obviously is of no materiality.

Likewise, in behalf of defendant R. B. Skelly it is argued that the evidence was insufficient to support the judgment that was rendered against him.

Again, without herein setting forth the evidence at length, an examination of the record convinces this court that, with full knowledge of the conditions under which the collaterals that were owned by the prosecuting witness were deposited with the company or corporation of which said defendant was an officer, said defendant knowingly aided and abetted in a fraudulent conversion or embezzlement of such securities to the use and benefit either of his codefendant, or of said company. That said defendant personally did not profit by either of the several transactions which were the basis of the several counts contained in the indictment is of no consequence.

The judgment and the order by which the defendants were denied their motion for a new trial are affirmed.

HOUSER, Justice.

We concur: CONREY, P. J.; YORK, J.