Reset A A Font size: Print

District Court of Appeal, Third District, California.


Civ. 7619.

Decided: March 28, 1949

Morris Lavine, Jack B. Tenney, Owen A. Bartlett, and Milton B. Safier, all of Los Angeles, for appellant. Fred N. Howser, Atty. Gen., and James A. Doherty, Deputy Atty. Gen., for respondent.

Defendant was charged in an information containing four counts with grand theft, a felony, to wit: (1) that he unlawfully and feloniously took $10,000, the personal property of Wanda S. Schoemann; (2, 3, 4) that he unlawfully and feloniously took the sums of $1,745, $1,000 and $7,000, respectively, the personal property of Anne Nichols.

Trial by jury having been waived, the court on February 6, 1948 found defendant “not guilty” of the offense charged in Count 1, and “guilty” of the offenses charged in Counts 2, 3 and 4 of the information. Thereafter defendant moved for a new trial. The hearing on this motion and on defendant's application for probation, and also the pronouncement of judgment and sentence were set for March 10, 1948, but were continued to March 24, 1948. On the latter date, the motion for new trial and the application for probation were denied; judgment was pronounced, and defendant was sentenced to state prison for the term prescribed by law, sentences on the three counts to run concurrently. On this date: March 24th, defendant gave oral notice of appeal, and on April 6, 1948, he filed a written notice of appeal which was ordered entered nunc pro tunc as of April 2, 1948. On April 7, 1948, said nunc pro tunc order was vacated and set aside, whereupon the court granted defendant's motion to set aside the judgment and sentence for the purpose of reconsidering defendant's application for probation. Probation was again denied and the court for a second time pronounced judgment and sentence as to Counts 2, 3 and 4. Defendant gave oral notice of appeal and on the same day: April 7, 1948, filed his written notice of appeal from the judgment of conviction and from the order denying him a new trial.

As its first point, respondent urges that the instant appeal should be dismissed for not having been taken in time. As hereinabove noted, two written notices of appeal were filed: (1) on April 6th and (2) on April 7th. Respondent argues that unless the nunc pro tunc order cured the defect, the first notice was clearly late, and the second notice was filed in time only if the setting aside of the judgment of March 24th was proper.

People v. Lewis, 219 Cal. 410, 414, 27 P.2d 73, holds that the time for filing a notice of appeal cannot be extended by stipulation of the parties or by order of the court, and that a nunc pro tunc order permitting amendment of a codefendant's timely notice of appeal by adding the defendant's name thereto is void ab initio.

With respect to the propriety of the court's action in vacating the judgment of conviction to reconsider appellant's application for probation, it is stated in 4 Cal.Jur.Supp., 1943 Rev. p. 886, that “jurisdiction to add to, vacate or modify the judgment depends primarily upon the showing as to whether the sentence has been entered in the court's minutes and the defendant has been restrained thereby. Prior to the execution, the court may vacate an erroneous judgment, but thereafter may not do so.”

In People v. McAllister, 15 Cal.2d 519, 526, 102 P.2d 1072, 1075, the following rule is enunciated: “If the sentence has been entered in the minutes of the court, or if the defendant has begun serving said sentence or has been restrained by the sentence imposed, then the court is without jurisdiction to vacate, add to, or in any manner modify the sentence originally pronounced. On the other hand, if the sentence pronounced has not been entered by the clerk in his minutes, and no legal restraint has been imposed upon the defendant by reason of said sentence, then it is proper for the court to change the sentence originally pronounced.”

Although the minutes of March 24th reveal that after the appellant gave oral notice of appeal and his bail-bond on appeal had been fixed, he was granted a thirty day stay of execution, the record further discloses that not only had the judgment and sentence of March 24th been entered by the clerk in his minutes prior to April 7th, but also that the formal judgments of conviction had been entered in the book of judgments. Consequently, under the ruling in People v. McAllister, supra, the court was without power on April 7th to vacate the judgment of conviction of March 24th.

Moreover, there is nothing on the face of the judgment which would indicate its invalidity; and although appellant asserts that it was void because of the failure of the court to arraign him for judgment as prescribed by section 1200 of the Penal Code, an examination of the reporter's transcript of the proceedings in the trial court on March 24th, reveals that such complaint is without merit for the reason that the trial judge before pronouncing judgment and sentence did arraign appellant and followed the procedure outlined in section 1200, supra.

Reverting to the question of the timeliness of the notice of appeal herein, section 1239 of the Penal Code, as amended in 1945, provides that “(a) Where an appeal lies on behalf of the defendant or the people, it may be taken by the defendant or his counsel, or by counsel for the people, in the manner provided in rules adopted by the Judicial Council.” Power is given to the Judicial Council by section 1247k of the Penal Code “to prescribe by rules for the practice and procedure on appeal, and for the time and manner in which the records on such appeals shall be made up and filed, in all criminal cases in all courts of this State.”

Rule 31 of Rules on Appeal, adopted by the Judicial Council on July 1, 1943, 22 Cal.2d 1, 22, reads as follows: “In the cases provided by law, an appeal may be taken by filing a written notice of appeal with the clerk of the superior court within 10 days after the rendition of the judgment or the making of the order, except that an appeal from an order denying a new trial shall not be taken until after the granting of probation or the rendition of judgment. * The notice shall be sufficient if it states in substance that the party appeals from a specified judgment or order or a particular part thereof, and shall be liberally construed in favor of its sufficiency.”

The minutes of March 24th recite: “Defendant gives oral notice of appeal.” Rule 31, supra, does not directly exclude oral notices of appeal, and section 1239 of the Penal Code before its amendment in 1945 permitted an appeal to be taken (1) by oral notice in open court at the time the judgment was rendered; or (2) by filing written notice within 5 days after rendition of the judgment.

In view of the fact that “The right of appeal in criminal cases is guaranteed by the constitution, and is as sacred as the right to a trial by jury. Ex parte Hoge, 48 Cal. 3; In re Albori, 95 Cal.App. 42, 272 P. 321.” 8 Cal.Jur. 489; and also because of the doctrine of liberality expressed in the last sentence of Rule 31, supra, it would appear that when appellant's oral notice of appeal was reduced to writing by the clerk and entered in the minutes of the court, it constituted a substantial compliance with said Rule 31.

In Estate of Hanley, 23 Cal.2d 120, 122, 142 P.2d 423, 149 A.L.R. 1250, where appellant through no fault of his own but relying upon misrepresentations of the adverse party did not take an appeal until too late, our Supreme Court held that the appeal must be dismissed and that no relief could be granted to appellant for the reason that the statutory requirement as to the time for taking an appeal was mandatory and that the court was without jurisdiction to consider an appeal which had been taken subsequent to the expiration of the statutory period, it being immaterial whether the misrepresentations were wilful or inadvertent, whether the reliance thereon was reasonable or unreasonable, or whether the parties seeking to dismiss were acting in good faith. The court there stated that in the absence of statutory authorization, neither the trial nor appellate court could extend or shorten the time for appeal.

However, the same court in the more recently decided case of People v. Slobodion, 30 Cal.2d 362, 365, 181 P.2d 868, 870, denied a motion to dismiss an appeal where it was shown on behalf of appellant that, within the statutory period, he delivered his notice of appeal to employees of the prison where he was then confined with the request that it be mailed to the proper party for filing, and that such employees negligently failed to forward the notice within the limitation specified by Rule 31 of the Rules on Appeal. The court held that the delivery of the notice to the prison authorities constituted a constructive filing thereof within the prescribed time limit and satisfied the jurisdictional requirement as contemplated by law. It was there stated that while it is the “settled rule in this state, both in civil and criminal cases, that the time requirements for the taking of an appeal are mandatory, and that the appellate courts are without jurisdiction to consider an appeal which has been taken subsequently to the expiration of the statutory period. * Adherence to this rule will not deprive appellant of his appeal under the distinct factual situation involved.”

It cannot be seriously questioned that the oral notice of appeal entered in the minutes of the court herein conferred jurisdiction upon the appellate court. In the cited cases there was a complete failure to file notice or take any other initial step required to institute the appeals within the time prescribed therefor; in the instant case, the oral notice made by appellant in open court at the time of pronouncement of judgment and sentence and which was later written into the minutes, initiated the appeal from that judgment and fixed jurisdiction of the appellate court. In the circumstances presented, it would seem inequitable and unjust to deprive appellant of his right of appeal because of the lack of a formal written notice.

The foregoing discussion is not to be understood as passing judgment either on the validity of paragraph (a) of Section 1239 of the Penal Code, as amended in 1945, or on the power of the Judicial Council to adopt laws of procedure affecting substantial personal or property rights under the authority of paragraph (5) of section 1a of Article VI of the State Constitution.

Turning to the appeal on its merits, appellant relies upon the following propositions for a reversal of the judgment:

1. The evidence is insufficient to sustain a conviction upon any of the three counts.

2. Appellant took the money openly and avowedly and under a claim of right preferred in good faith.

3. The court erred in receiving prejudicial evidence as to other transactions, and in sustaining objections of the prosecution to evidence offered in behalf of appellant.

The instant prosecution arose out of the following circumstances:

Mrs. Wanda M. Schoemann, referred to in Count 1 of the information, met appellant in September of 1946. She was a widow then known as Wanda Martin, with two minor children and sought advice from a friend with respect to the investment of money left to her by her husband. She was referred to an insurance company which employed appellant as an agent, with the result that appellant visited her at her home to discuss such investment with her.

Mrs. Schoemann testified that in the course of her acquaintance with him, appellant informed her that in addition to being an insurance agent, he was business manager for a number of people, including Anne Nichols and others prominent in the moving picture industry; that he held their powers of attorney, paid their bills, made loans for them, wrote their checks and carried on their business in general. This business management enterprise was carried on separately from the insurance business and was done through Hollywood Management Corporation, in which appellant, a Dr. Gourson, and Bert De Wayne Morris, Jr. were the stockholders.

This witness further testified that in October of 1946, appellant asked her if she would be interested in making a loan of $10,000 to Anne Nichols. After thinking about it for a week and discussing it with her mother, Mrs. Schoemann gave appellant a check for $10,000 payable to him and took back a promissory note for the same amount which was signed by appellant. The witness testified that on the evening the loan was made she stated to appellant: “* with the confidence I have in you and with the feeling that it will be repaid by Anne Nichols when her money (from Abie's Irish Rose) comes in, I will make the loan to Anne Nichols.” She further stated that appellant told her he was attorney-in-fact for Anne Nichols and had power of attorney to handle her affairs, and for this reason he asked that the check for $10,000 be made out to him. It is undisputed that this check was deposited in Anne Nichols Trust Account and later charged against Mrs. Schoemann's bank account.

On cross-examination, Mrs. Schoemann testified that she had a conversation with appellant at the time in question and that “he said he had just repaid a loan for Anne Nichols and it was a nice way of making money. He had given this man a five hundred dollar bonus for the use of the money for two months, for ten thousand dollars, and he said ‘She needs some more money.’ And he said, ‘I am her business manager. I take care of her affairs.’ And he said, ‘I would like for you to loan her ten thousand dollars and you will get the same sort of a bonus only instead of three months we will set yours up for six months because her picture ‘Abie's Irish Rose’ won't be released until March and she won't have the money until then.' ” After she made the loan, Mrs. Schoemann was worried about it and called appellant on the telephone and said: “With the confidence I have in you, Mr. Behrman, I feel that you will see that the money is repaid to me, that is the loan of Anne Nichols; but I said supposing something happens to you, Mr. Behrmann, how will I know for sure that I will get my ten thousand dollars back? * So he said, ‘Well, what is there to worry about? Nothing is going to happen to me’, he said ‘if you will feel a little better about it, supposing I take out a policy on myself and I will assign it to you and then if anything happens to me, if Anne doesn't repay it, you will be sure of getting you ten thousand dollars.’ * That was just a few days after I had made the $10,000 loan to Anne Nichols.”

There was introduced in evidence a so-called loan and note sheet the first item of which reads as follows: “November 1st, 1946, Paul R. Behrmann, due date May 1st; amount of loan $10,000.00; interest paid 6%.” The witness Schoemann testified that this sheet represented the original record of the first loan of $10,000; that it was written by her around November 1, 1946; and that the entry on said sheet “Loan to Anne Nichols” was inserted a week or two after the original entry. In answer to the question on cross examination: “Isn't it true that the entry ‘Loan for Anne Nichols' was put in there when you first determined in your own mind that Mr. Behrmann had taken some money from you that he was not authorized to take?”, the witness stated: “No, it was not put in that way.” To the further question: “At that time however it was very clear in your mind that it was to be a loan for Anne Nichols?”, the witness answered: “Yes.”

Subsequently Mrs. Schoemann made a loan of $2,500 to Anne Nichols and three loans to appellant, to wit: $3,000, $3,750 and $7,945. With reference to the $2,500 loan to Anne Nichols, that check was made payable to Anne Nichols and was endorsed by appellant as Attorney-in-fact for Anne Nichols. However, it is with the money involved in the first loan of $10,000 that this case is concerned.

On November 1, 1946, the check for $10,000 was deposited by appellant in Anne Nichols' Trust Account at the Hollywood and Vine branch of the California Bank, the words “Loan from Wanda S. Martin $10,000.00” appearing on the back of the deposit slip. The Anne Nichols account book kept by Hollywood Management Corporation shows an entry of $10,000 cash received on November 1, 1946 and is identified as a loan. A financial statement entitled “Anne Nichols Receipts and Disbursements—November, 1946”, carries an item of $10,000 as a loan from Wanda Martin to Anne Nichols. The $10,000 was withdrawn from the Anne Nichols Trust Account by three checks all payable to appellant. The first two were dated November 1, 1946 and were for $1,000 and $2,000, respectively. The third, also payable to appellant, was dated November 2, 1946, and was for $7,000. None of these withdrawals was with the permission of Anne Nichols and neither did she authorize appellant to use the money so withdrawn for his own purposes.

Appellant took the stand in his own defense and testified that on the evening of October 31, 1946, he had a discussion with Mrs. Schoemann with reference to the $10,000; that he told her that he had a great number of obligations and was building a house which was costing “two or three or four times” what he had expected; that he had a great number of accounts receivable and was not getting paid very readily, and Mrs. Schoemann said “Well, if you need some money I would be glad to let you have it because I have some money in the savings account earning a lousy one per cent interest, and I will be glad to let you have some. How much do you need?” Appellant said “I could use as much as $10,000.00 if she could spare it. She said, ‘Well, how much interest will you pay?’ I said ‘I will pay you 6 per cent interest.’ She said ‘I get 7 and 8 per cent on all my trust deeds and I don't know why I should let you have money at 6.’ I said that 6 per cent was all I would pay. She also asked me how long I expected to use the money, and I said that I thought if I could have it for six months that would be adequate. * She said ‘Well, if you are sure I am going to have the money back in that time * you remind me before you go and I will give you a check.” Appellant further stated that Mrs. Schoemann asked him at that time: “How do I know that I will get this money back?”; and that he particularly told her that he had accounts receivable worth between $11,000 and $15,000; life insurance renewals worth about $33,000 to $34,000 which was one of the reasons “I was stuck for cash, because that was spread over a nine year period”; that he told her his general insurance business had a value of from $17,000 to $20,000 or $21,000, but that “with the loans out and accounts receivable that I was short of cash and therefore when she offered it to me I said that I appreciated it very much that it would sure help. * She gave me a check before I left * payable to me.” Appellant denied that he told Mrs. Schoemann that he was making this loan for Anne Nichols; that on the next evening he gave Mrs. Schoemann a note for the check he received the night before for the reason that Mrs. Schoemann became worried about the money and said “As long as you are alive I know I have nothing to worry about, but if you should die what would happen to it?” That he then told her she would have nothing to worry about because “my estate would pay the money and between my assets and my life insurance there will be an adequate sum to pay it. However, I said, ‘If you are worried I will have an insurance policy on my life so that if anything should happen to me you will be protected.’ * She said, ‘That will be all right.’ I asked her did she want the money back and she said no. I asked her would that be all? Was she entirely satisfied and she said yes.” That he thereafter assigned to Mrs. Schoemann a policy on his life in the sum of $10,000.

Appellant testified that the $10,000 check was deposited at his direction in the account of Anne Nichols; that “It was deposited there because I owed the bank some money and I owed several delinquent bills and I wanted to pay them and I didn't want the creditors to come in, because they had been dunning me. I didn't want an attachment, not only because of the money, but because it would virtually ruin my business.”; that he was overdrawn at two banks. That after the money was deposited in the Anne Nichols Trust Account, appellant instructed his brother to draw it out and “put it into some other account and to pay some bills with it”; that subsequently the money was withdrawn as follows: On November 2, 1946 by a check for $7,000, on November 1, 1946, a check for $2,000, and on November 1, 1946, a check for $1,000, all made payable to the order of appellant. Appellant also testified that subsequently he made a loan from Mrs. Schoemann for $1,000 on behalf of Grant Withers, and also one for $2,500 on behalf of Anne Nichols. In reply to the question: “Now, prior to making the $2500.00 loan for Anne Nichols had you made other loans in her behalf?”, the witness stated: “A great number.

“Q. Were those with her knowledge or without her knowledge? A. Most of them without her knowledge.

“Q. Will you please state your reasons for making loans for her without her knowledge? * A. There were several reasons. First of all she had been ill and the doctor had ordered that she not be worried or disturbed, and the second reason would be that I had authorization under my power of attorney to make these loans for her and I did make them.” Moreover, that he made loans to her out of his own money and that she was still indebted to him on that account.

On cross-examination, appellant testified that he was overdrawn at the bank and had received dunning letters and was afraid of possible attachment; that he wanted time—a couple of days—in which to pay out these checks to people to whom he owed money; that the $7,000 which he withdrew from Anne Nichols account on Nov. 2, 1946 he deposited in his ranch account at the Bank of America; and the $2,000 which he withdrew on Nov. 1, 1946 he deposited in the Sixth & Grand office of the California Bank; that no one attached any of these funds; that the “money was used for a purpose other than one connected with Anne Nichols”; some to pay bills owed on the house he was then building; part to pay an insurance company for delinquent insurance premiums. The witness was shown the financial statement to Anne Nichols, signed by himself, and was asked: “At the time you signed this you saw this item on here ‘Loan from Wanda S. Martin (Schoemann) to Anne Nichols', didn't you? A. I probably did not because these statements were made up directly from the book, and it was receipts and disbursements and they would automatically be correct as to that they would follow the book, so whatever was in the book would follow on these pages.

“Q. You say you saw that duplicate deposit slip along about April, 1947? A. In about March.

“Q. After March, 1947, did you take steps to change these books to show that that was not a loan from Wanda S. Martin to Anne Nichols? A. I did not.”

In addition to the testimony of Mrs. Schoemann in opposition to appellant's version of what occurred, Marie Barton, an accountant employed by appellant from October 23, 1946, to January 27, 1947, testified that she set up the $10,000 item in the general ledger of the Anne Nichols Trust Fund account about November 1, 1946 by an entry: “$10,000.00 net amount received from Wanda S. Martin Loan”; that the purpose of this was to show a loan from Wanda S. Martin to Anne Nichols. This witness further testified that when the three withdrawals of $1,000, $2,000 and $7,000 were made from that $10,000, she asked appellant “what he was doing with the money, and he said he would advise me later, and I waited to the end of the month, and I said, ‘what happened to the money? Who shall I charge it to?’ He said ‘Place it in an exchange account and I will advise you later.’ ” That when she made her original entry of the $10,000 item from the information on the back of the deposit slip, to wit: “Loan from Wanda Martin”, she also sought advice from appellant's brother, Mr. Leopold Behrmann, the general manager of the office, by asking him “Is this a loan from Wanda Martin to Anne Nichols?” and that he told her “Yes”.

The witness Bert De Wayne Morris, Jr., an associate of appellant in the Hollywood Management Corporation, testified that some time in September of 1947, he, John Tully, Dr. Gourson and appellant had a meeting at the office of said corporation at which time appellant was asked about the $10,000 that went into the Anne Nichols account; that “I believe that one of us, I forget who it was, asked him what was cooking with the $10,000.00, because we went over the books and it said $10,000.00 from Wanda Martin to Anne Nichols and then over the next month I believe it was the $10,000.00 was brought out of Anne Nichols account and right on the books it said ‘Loaned to P.R.B.’, that is Paul R. Behrmann, and we asked him what that meant and he said that he had arranged a loan for Anne Nichols and had gotten $10,000.00 from Wanda Martin on the loan. However, Miss Nichols got some money from royalties, something of that sort, and so he brought the money back out from out of her account again.” On cross-examination, this witness was asked if appellant told him that he secured a loan from Wanda Martin for himself and deposited it in Anne Nichols account, to which he replied: “Oh, to tell you the truth, I don't remember. That could have been said.” However, he believed that appellant did say that he used the money, or the account, as an exchange account.

Appellant urges that the evidence is insufficient to sustain a conviction upon any of the three counts, 2, 3 and 4.

Appellant's acquittal on Count 1 of the information is a finding that the manner in which he obtained the $10,000 from Mrs. Schoemann on November 1, 1946 was not wrongful. Moreover, the conviction on the last three counts is an implied finding that the money in question was a loan by Mrs. Schoemann to Anne Nichols. There is ample support in the record for such findings: First of all, the testimony and records of Mrs. Schoemann, who at all times considered the loan was made to Anne Nichols, and whose original record of the loan carried an entry made within a week or two after November 1st identifying the loan as having been made to Anne Nichols. Secondly, there is the conduct of appellant and the members of the staff of the Hollywood Management Corporation: the money was deposited in Anne Nichols Trust Fund account at appellant's direction; the deposit slip and duplicate deposit slip were made out for the Anne Nichols account and each carried a notation on the reverse side that the money was a loan from Wanda Martin (Schoemann); the Anne Nichols account book kept by the Hollywood Management Corporation carried an entry of $10,000 identified as a loan from Wanda Martin; the statement of the Anne Nichols Trust Fund account for November, 1946, signed by appellant, identified the transaction as a loan to Anne Nichols. Also, there is the testimony of Marie Barton, appellant's accountant, that she prepared a list of expenses that needed to be paid for Anne Nichols totalling between $12,000 and $14,000, which implied that Anne Nichols was in need of a substantial loan. Further, there is the testimony of the witness Morris revealing that as late as September, 1947, appellant stated that the entry of $10,000 in Anne Nichols account was a loan from Wanda Martin.

In opposition to such evidence is appellant's claim that the $10,000 loan of November 1, 1946, was made to him personally. Supporting this is the fact that the note given for such loan is signed by appellant and the passbook for the note was in appellant's name, while subsequent loans made by Mrs. Schoemann through appellant show names of the real parties in interest, i.e.: Exhibit 4, Anne Nichols Exhibit 5, Paul R. Behrmann; Exhibit A, Grant Withers. Such apparent inconsistency may be explained in two ways: First, the fact that Mrs. Schoemann was inexperienced, never having handled a loan before by herself. Secondly, appellant told her that he held Anne Nichols' power of attorney, and therefore his signature was sufficient. Moreover, there is evidence that during this period Mrs. Schoemann relied upon appellant for advice in financial matters. Also, in support of appellant's theory, the evidence shows that Mrs. Schoemann asked for and received security for the $10,000 loan in the form of an insurance policy from appellant and not from Anne Nichols; but it is also shown that appellant suggested the insurance policy assignment in order to allay Mrs. Schoemann's fear that she would not get her money back if anything happened to appellant.

The record discloses that additional security by way of a trust deed and a conveyance of land was given months later, in August, 1947, which according to appellant was security for all loans outstanding between him and Mrs. Schoemann, including the $10,000 loan of November 1, 1946. Mrs. Schoemann, however, denied that this security covered the $10,000 loan.

Complaints in two civil actions filed in September, 1947, by Mrs. Schoemann against appellant and Anne Nichols, respectively, were read into the record. This evidence tended in some respects to impeach the credibility of Mrs. Schoemann, but what effect was given to it by the trial court is not known. However, the rule laid down by People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 780, and the large number of cases which have followed it, measures the effect which this court must give to the verified complaints in the civil actions and all the other evidence presented at the trial herein, to wit: that before the verdict or findings of the trier of fact can be set aside on appeal upon the ground of insufficiency of the evidence, “it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below.”

Because of the direct conflict in the testimony with respect to the circumstances under which the $10,000 loan was made, it became a question of fact for the trial judge, whether it was loaned by Mrs. Schoemann to appellant or to Anne Nichols. His decision on this issue is substantially supported by evidence, hereinabove briefly recited, that all parties who had knowledge of this loan considered it as having been made to Anne Nichols.

Appellant here relies upon the statutory rule that in a prosecution for embezzlement, “it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title prefered in good faith, even though such claim is untenable.” Sec. 511, Penal Code.

Such claim is based upon the contention that the money was taken by appellant “under an absolute ownership”; that it belonged to him and not to Anne Nichols, hence the authorization of the latter was not necessary.

The defense permitted under section 511, supra, presents an issue of fact and not of law. People v. Knott, 15 Cal.2d 628, 633, 104 P.2d 33, 128 A.L.R. 1367.

In view of the evidence adduced at the trial and the construction placed upon it by the trial court, i.e., that the $10,000 was advanced as a loan to Anne Nichols, it appears that appellant was not acting in good faith and therefore is not entitled to the benefits of the code section. At all times, appellant was attorney-in-fact for Anne Nichols under a power authorizing him to “act in, manage and conduct all my affairs and for that purpose in my name and on my behalf to do and execute all or any of the following acts, deeds and things, that is to say: *

“IX. To deposit any moneys which may come to his hands as such attorney with any bank in my name, and any of such money or any other money to which I am entitled which now is or shall be so deposited to withdraw, and either employ as he shall think fit in the payment of any debts, or interest, payable by me, or taxes, assessments, insurance, and expenses due and payable or to become due and payable on account of my real and personal estate, or in or about any of the purposes herein mentioned, or otherwise for my use and benefit.”

Appellant admitted he had made a great many loans for Anne Nichols, most of them without her knowledge; and he also admitted that he deposited the $10,000 in the Nichols Trust Fund account and drew it out for his own use. While the financial statement which he rendered to Anne Nichols shows that the three items of $7,000, $2,000 and $1,000 were paid to him as “loans”, no evidence was presented by him to prove that he had any such arrangement with Anne Nichols or that he intended to borrow the money from her at the time he withdrew it.

Appellant, as his final point, urges that the trial court erred in receiving evidence of other allegedly similar transactions. While he admits that such evidence is generally admissible to show common scheme or plan with relation to an offense charged, he denies that such similarity exists in the instant case, and further objects to certain portions of the evidence as being inadmissible and highly prejudicial to his cause.

It was shown that appellant was business manager for Robert Mitchum, a motion picture actor, from January, 1947, to September, 1947, holding a power of attorney such as the one under which he acted for Anne Nichols; that in August, 1947, appellant was overdrawn at the bank in both his “trust” and “ranch” accounts; that he withdrew from the Mitchum account during that month a total of $9,000, which he deposited in his own accounts without the consent or authorization of his principal and used the money for his own purposes. It is clear from the record that in August, 1947, appellant was having financial difficulties, just as he had in November, 1946, and that he used funds from the Mitchum account during that period just as he had from the Nichols account during the earlier period.

In the Nichols transaction, appellant claimed the money he used was a loan to him by Mrs. Schoemann. In the Mitchum transaction, he claimed it was the result of an investment made by Mitchum in appellant's insurance business.

Mr. Mitchum testified that appellant asked him on the 17th of August, 1947, if he would like to go into the “business management business”, to which the witness replied that “if he, as my business manager, advised my investment in Hollywood Management Corporation and showed that it would be a profitable venture with some guarantee of safety, that I would be agreeable to it but * I took the matter under consideration * he said he would bring the matter up at a further date. * He mentioned it a couple of times and I was agreeable to it * if he showed me that it was a reasonable, profitable and legitimate venture * that is as far as the discussion ever went”; that shortly thereafter the witness left for Oregon.

There was no showing made that the money withdrawn from the Mitchum account was ever put in either the Hollywood Management Corporation or appellant's insurance business. At any rate, the theory of an investment was apparently dropped by appellant when he prepared Exhibit 14, the agreement under which the Mitchums were to receive from him the sum of $18,000 in consideration of their having loaned him $9,000. Again, his actions here as in the Nichols transaction are consistent with the theory that he was using his clients' money for his own purposes.

As stated in People v. Baker, 25 Cal.App.2d 1, 5, 76 P.2d 111, 112: “It is not essential that such similar transactions shall have resulted in the commission of a crime. It is sufficient if they tend to prove a scheme of the defendant which included the acts charged.” And again in People v. Kendall, 65 Cal.App.2d 569, 570, 151 P.2d 39, 40, it is said: “For the purpose of establishing fraudulent intent in a prosecution for grand theft in the nature of embezzlement evidence is admissible of acts of a similar nature committed by defendant before and after the date of the act upon which the conviction is predicated. People v. Talbot, 220 Cal. 3, 17, 28 P.2d 1057 et seq.”

In the circumstances presented there was sufficient similarity between the two transactions to overcome appellant's objection to the introduction of evidence with respect to the Mitchum transaction.

With reference to the testimony of Mr. Ellis, secretary to Mr. Mitchum, regarding a conversation he had with appellant to wit: “Paul Behrmann told me that he understood Mitchum was having lunch with Mr. Copp, who was Mr. Mitchum's attorney, in connection with going to the District Attorney regarding his $9,000 that was invested. And I told Mr. Behrmann that I knew nothing of Bob going to the District Attorney and we had a long conversation regarding Mr. Mitchum and Mrs. Mitchum. Mr. Behrmann then informed me of his dislike for Mrs. Mitchum, and he felt that Mrs. Mitchum was the cause of all the troubles that might have gone on about him and Bob. He said that it was due to Mrs. Mitchum that they had gone to the District Attorney with a complaint. It of course is not true. He then told me that if Mrs. Mitchum didn't keep out of the case that he was going to do something about it, in fact that he was going to do away with her, if necessary. Of course, I told Mr. Behrmann that I didn't like for him to tell me those things because I was working for Mr. Mitchum and as a consequence I would have to go back to him with this and there might be repercussions. That was the extent of the conversation.

“Q. In that conversation, isn't it true, Mr. Ellis, that you told Mr. Behrmann that Mr. Mitchum was not going to the District Attorney but that the District Attorney was coming to see him. A. That is right.”

Appellants' counsel moved to strike this testimony on the ground it was not within the issues of the case. The motion was denied. It is here urged that this evidence being highly prejudicial, “perhaps contributed more to the defendant's conviction that all of the rest of the proof of the prosecution.” While it may have been error to admit this testimony to prove consciousness of guilt, it was not so prejudicially erroneous as to warrant a reversal of the judgment of conviction. This is also true of the testimony of the two witnesses introduced by way of depositions.

It should be observed that this was not a jury trial, and as was pointed out in People v. Albertson, 23 Cal.2d 550, 577, 145 P.2d 7, 20, quoting from Wharton's Criminal Evidence, sec. 360, p. 567, “ ‘It does not reflect in any degree upon the intelligence, integrity, or the honesty of purpose of the juror that matters of a prejudicial character find a permanent lodgment in his mind, which will, inadvertently and unconsciously, enter into and affect his verdict. The juror does not possess that trained and disciplined mind which enables him either closely or judicially to discriminate between that which he is permitted to consider and that which he is not. Because of this lack of training, he is unable to draw conclusions entirely uninfluenced by the irrelevant prejudicial matters within his knowledge *.’ ” On the other hand, there is little, if any, justification for the belief that the trained mind of the trial judge who heard the instant cause was influenced to the prejudice of appellant by the evidence here objected to.

The record herein shows that appellant had a fair and impartial trial, and certainly no error is shown which, after an examination of the entire cause including the evidence, reasonably suggests that there has been a miscarriage of justice. Const. art. VI, sec. 41/212.

For the reasons stated, the judgment and order appealed from are, and each of them is affirmed.


DRAPEAU, J., did not participate.

Copied to clipboard