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


Cr. 5070.

Decided: April 26, 1954

Cannon & Callister, David H. Cannon, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., S. Ernest Roll, Dist. Atty., Robert Wheeler, Deputy Dist. Atty., Los Angeles, for respondent.

In an indictment returned by the Grand Jury of Los Angeles County containing ten counts defendant was accused in each of the crime of grand theft.

Following denial of a motion made under section 995 of the Penal Code and defendant's demurrer to each count of the indictment, he entered a plea of not guilty to all counts, and the cause proceeded to trial before a jury, resulting in guilty verdicts as to Counts I, II, IX and X. Verdicts of not guilty were returned as to Counts V and VI. While as to Counts VII and VIII, the jury was unable to agree upon a verdict. As to the four counts upon which defendant was convicted, a motion for a new trial was made and denied. Proceedings were suspended and defendant was granted conditional probation. This appeal is from the judgment and the order denying defendant's motion for a new trial.

The record reveals that at the time of trial and for a number of years prior thereto, defendant was engaged on his own account and also as a real estate broker and agent of others, in buying and selling real estate in the Antelope Valley, in or near Lancaster, in the County of Los Angeles. In connection with his activities defendant had dealings with each of the persons named in the indictment.

During the past several years the entire Antelope Valley, and particularly in the vicinity of Lancaster, has experienced unusual growth and activity; land values have risen rapidly and in substantial amounts, and many chicken ranches have been established and operated. About the middle of the year 1948, defendant went to Lancaster and soon thereafter became engaged in the real estate business.

At the time he went to Lancaster, defendant was in very serious financial straits, occasioned by losses sustained in the theatrical agency business and the production of motion pictures. Numerous civil judgments in rather large amounts had been taken against Mr. Pond and were of record when he went to Lancaster, so in the buying and selling of real estate in and around Lancaster he took title to and made some conveyances in names other than his own. Among the names he used was Geoffrey A. Watterson. He also took property in the name of Helen Fay Blackburn, sometimes known as Helen Fay Dale, the person named in Counts III and IV of the indictment.

In November, 1949, Mrs. Blackburn came to work in defendant Pond's office in Lancaster as a real estate broker and she and Mr. Pond engaged in a number of real estate transactions some of them being conducted in her name. A number of pieces of property were placed of record in her name rather than in Mr. Pond's name. In some of these pieces of real estate Mrs. Blackburn had a joint venture interest with Mr. Pond and in still others she had no actual interest either by way of ownership or otherwise. Mr. Pond gave as his reason for placing title to property in names other than his own the fact that he did not want existing judgments to become liens against any of his property.

While engaged in the real estate business at Launcaster, defendant conducted an extensive advertising campaign in newspapers, by mail, road signs, billboards, etc.

In discussing the factual background surrounding this prosecution we shall deal only with the counts upon which defendant was convicted.

Count I involved dealings with G. M. Bradford and his wife. They had had some experience in raising chickens in the state of Ohio. Mr. Bradford first learned about defendant when he ‘read it in the advertisement in the papers', and then he ‘saw a man in Los Angeles'. Thereafter, the Bradfords went to Lancaster and on April 24, 1951, met defendant in the latter's office where they went ‘to see about chicken farms and laying houses; in other words, we were just looking for the chicken business, seewhat we could find up there’. After telling defendant of their experience in the operation of farms and chicken business in Ohio, they requested that he tell them about what he had advertised in the newspapers. Defendant then told them about the large profits in raising chickens, what the possibilities were in the chicken ranch and chicken raising business, and how they could make considerable money. Defendant inquired as to whether they wanted to buy a chicken ranch or what they proposed to do. He asked how much money Mr. Bradford had. The latter replied that he had $7,000 and desired to purchase a chicken ranch. Defendant responded that, ‘not less than $5500.00 would be acceptable on the contract that we were thinking of going into with him’. Defendant then said, ‘Let's go out and look as some of these chicken houses. I don't think you have got quite enough money for them’. Defendant then took the Bradfords out to look at some of the chicken houses and chicken farms, showing them two or three different ones. They did not see quite what they wanted. Then defendant said he would take them to his home ranch and that maybe they would like what they saw there. They then went to defendant's home ranch and he showed them a chicken house being constructed. He said he had 120 acres at the home ranch. Defendant wanted to know which, right then, Bradford wanted to take.

At defendant's home ranch there was the home and an apartment building to the left of it; there was a chicken house partially built, no roof on it, just the side walls up, and a lot of debris and dirt around the chicken house.

Defendant said he needed help on his ranch and would employ Mr. Bradford. Defendant said ‘he needed a man of my (Bradford's) ability to take care of his farm, * * * he had been looking for somebody like that for a long time and he was awfully glad that I would be able to do something like that—being the fact that I didn't have enough money to go into the chicken business, that is buy the chicken house and grounds * * *’.

Defendant told Bradford: ‘Well, * * * you're just the type of a man I have been looking for for a long while * * * I need somebody on my ranch to take care of it * * *’.

Defendant told them he would write up a contract, that in a short length of time they should get their $5,500 back and have good employment and big profit.

Defendant offered Bradford ‘the position of taking care of, on the contract, the contract you have in your hand there’.

On April 21, 1951, Mr. Bradford first saw the proposed contract while in defendant's office. Among other terms, the contract provided that the Bradfords ‘agree to put up $5500.00 as a guarantee that they will properly supervise and operate the chicken house on the Morning Star Ranch at 60th and ‘H’ West, Lancaster'; it then provided for division of the income. Defendant and the Bradfords signed the contract. Mr. Bradford testified that the reason for advancing the $5,500 was ‘as a guarantee of our loyalty to stay with this work and see it through.’ Defendant said the $5,500 was ‘(t)o be held in good faith, that’ (Bradford) ‘would stay with’ (defendant) ‘until the contract was fulfilled’. As to the chickens, defendant was to furnish everything, the Bradfords were to move in and get to work.

In connection with the conversation above related, Bradford gave defendant a check for $5,500. Defendant received cashier's checks totaling $3,000 and the balance in cash from the proceeds of this check. One of the cashier's checks in the sum of $500 bore the endorsement of defendant and one Ralph A. Mochel and was delivered in payment for a deed to some property by defendant. The other cashier's check in the sum of $2,500 was tendered to the Sipherd Service of Lancaster and deposited to their account.

On April 24, 1951 the Bradfords had some conversation with defendant ‘about the construction of this chicken house’. Defendant asked when the Bradfords' rent was up in Long Beach; they told him; he said they should come up there then and it would be ready. Defendant ‘promised that it would be ready for (Bradford) to move into the house, the house would be furnished and the chicken house would be finished and ready to go into production of chickens on the 9th of May.’ They would take over the chicken ranch right at the time they came up.

The Bradfords received a letter from defendant dated April 28, 1951, advising them ‘we are progressing very nicely with the house and the chicken building and we will have your house so that you can move into it by May 9th.’

The Bradfords returned to Lancaster on May 9, 1951. They drove into the home ranch and saw there was nothing they could notice had been done at all on the chicken house or on the house they were supposed to move into. ‘(T)he little house was just—the bare outside walls were up and they had the roof on it. No paint; no inside work done; no plumbing or anything was done up to that time. And the chicken house was just the house walls and some of the rafters up, the roof could be put on.’

Upon the Bradfords return to Lancaster on May 9, 1951 they had a conversation with defendant. ‘(A)s near as I can recall, (defendant) stated that the house wasn't quite ready for us to get in and the chicken house wasn't ready, and he had an apartment there in his apartment building that we could have until the chicken house was ready for us, the other house was ready for us to move into.’

Defendant turned over to the Bradfords one of the apartments alongside of his home to live in until the chicken house was completed. The Bradfords moved into the apartment, unpacked and stayed there.

The next morning Bradford talked with defendant. Bradford asked defendant ‘about the chicken house, when he thought it would be ready; and he said, well, his foreman was there and I believe his foreman was there at this time, and he had his men working on it, he said he would get it ready just as soon as they could; and in the meantime I says well, I said, at the time I'm going to have to go out and get a job. He says, ‘Well,’ and he says ‘I will put you to work here on the farm here as my foreman, my ranch foreman;’ and he hired me then.'

Bradford went in the house, got on his working clothes and went to work for defendant.

Bradford ‘was to be the foreman of the ranch, doing the crops and planting crops and things, and doing the ranch work around the ranch.’ Bradford worked there about four months from May 10th. He had no other employment.

Bradford ‘painted the barn, started painting the barn and cleaning up the place. They had an old tractor there that we used and a trailer and just started in general to clean up the debris and dirt and everything that was around the place.’ Defendant paid Bradford $150 a month wages for four months.

After four months defendant discharged Bradford, saying he was disloyal to him, and had been talking to other people about defendant's business. Bradford had been doing so.

The Bradfords had stayed in the apartment about ten months when they left the Antelope Valley in February, 1952. Defendant had told Bradford he was letting him occupy the apartment after firing him in lieu of interest on Bradford's $5,500.

There were no chickens on the place at any time. During the time the Bradfords spent on defendant's home ranch the house was never completed.

On October 31, 1952 Bradford received from defendant a refund of the $5,500.

Generally, concerning the various checks that were placed in evidence including the checks involved in this count, defendant admitted on the witness stand that he did not maintain any bank accounts and that the checks received by him were cashed and the proceeds were ‘just used in my regular business'.

Count II involved dealings with Jan Reinders who did not ‘speak plain English because I'm only five years in the United States'. This complainant also met defendant through reading an advertisement in a Los Angeles newspaper. Mr. Reinders, accompanied by his wife, telephoned defendant at the latter's office during August, 1951, seeking information about the chicken business. Mr. Reinders advised defendant that he had ‘come up with not enough money to start in (his) own business; so then (defendant) started asking me if I was willing to go with him as partner; and in that case we talked farther and went to his ranch to see the chicken house and the little house what I supposed to occupy.’ Reinders saw defendant's ‘home and the apartment building on the premises, and the little house what I supposed to go into and to going up of the chicken house.’ The chicken house was not completed when Reinders was there in August, 1951.

Defendant asked Reinders if he ‘was willing to take full charge over there because he could not be on the ranch * * * and then I got to take full charge of the ranch. And when it was necessary to do some repair work in the apartments that are on his premises.’ Defendant asked Reinders if he ‘was able to give a thousand dollars as a security that I want to live off the farm and the chickens were in the house.’

Reinders advanced $1,000 to defendant in connection with the transaction. The $1,000, ‘was for the purpose as security that I won't run off the farm when the chickens were there so that he gets stuck with the chickens and nobody there.’

There was an agreement or contract drawn in connection with the conversation. The agreement defendant signed after the conversation just related.

The agreement in question is similar in all respects to and follows the pattern of the agreement set forth with regard to the evidentiary statement in Count I and need not here be narrated.

Mr. Reinders stayed on the ranch from November 15, 1951 until February 29, 1952. At the time he left he had not received back his $1,000. At no time did Reinders ‘receive a delivery of the chickens to take care of on’ the ranch. He testified he believed defendant's statements and relied upon them in parting with his advancement of $1,000. In connection with this count, defendant admitted on the witness stand that he did not maintain any bank accounts and that various checks received by him were cashed and the proceeds ‘just used in my regular business'.

Counts IX and X involved negotiations with Cecil R. Dean who approached defendant about February, 1951, with an offer of $125 an acre for some forty acres situated near defendant's office. Accepting a deposit of $50, defendant stated he would present Dean's offer to the owner of the property. A few weeks later defendant informed Dean that he was unable to negotiate a deal for the aforesaid property but had a parcel of better land in another location that he would like to show Mr. Dean. Thereupon, defendant took Dean with him and showed him some vacant property comprising eighty acres. After making some independent inquiries concerning the property in question, Dean returned to defendant who informed him that the property belonged to a widow, but when Dean offered to accompany defendant to interview the owner, he was informed by defendant that the latter could better transact the business alone. Mr. Dean expressed a desire to purchase the entire eighty acres but was informed by defendant that too much money would be required. Defendant then offered to purchase forty acres if Dean would buy the remaining forty acres, and together they would drill a joint well at the intersection of the two forty-acre parcels, and then subdivide the entire property. Defendant suggested a price of $200 per acre, but they settled upon $190. Defendant also offered to do all the detail work of selling the property as subdivision property at a commission of 10 per cent, rather than the much larger amount generally charged for vacant property. Dean agreed to take the 40 acres at $190 per acre. Dean gave defendant a $1,950 check.

The following day, March 22, 1951, Dean paid defendant another $2,000. Defendant admitted on the witness stand that he put this money in his business; that he did not set up a trust account for Dean, the purchaser of the property.

Dean's check for $2,750 dated March 22, 1952 was delivered to defendant. It was for $2,000 payment in full of the amount due at that time on the property, and $750 as Dean's half payment of the cost of drilling a well on the intersection of the two forty acre parcels.

Defendant said they needed a well on the property, to be located at the dividing line of the two ‘40's'; that the water from the well would be used to irrigate parts of each ‘40’; that the cost of it would be $1,500; that it would be half on defendant's property and half on Dean's; that they would split the cost. So Dean paid defendant the $750 portion of the $2,750 check as Dean's half of the cost of the well. Defendant said he would have the well started in at least two weeks. Defendant said he would buy from the widow who owned the other 40 acre parcel next to Dean's. A well was not drilled on the property.

Dean's next contact with defendant was around April 1, 1951. On that date Dean made a $1,500 payment to appellant. On that occasion, at defendant's office in Lancaster, Dean offered to erect a tract office on the property, from which they could have salesmen out selling property in smaller parcels; that is, the property being purchased was to be a subdivision. Defendant said he thought he could erect a tract house for approximately $1,500. Defendant showed Dean some concrete blocks in his office which he said would probably be the best material with which to build a tract house. They talked, too, of the use of the tract house after the property was subdivided; Dean might sell it to individuals or might retain it in his own name. So Dean paid the defendant $1,500 in the form of a $1,000 check and $500 in traveler's checks.

A tract house was never constructed on the property. Defendant admitted receiving $1,500 from Dean for the construction of the tract house.

During May, 1951, Dean again saw defendant and demanded title to the property. Defendant replied that he was unable to deliver such title. In response to Dean's request for the return of his money, defendant replied that he did not have the money but offered as security certain trust deeds which were later accepted by Mr. Dean. A subsequent demand for the money proved equally futile and when asked what he had done with it, defendant replied that he had used it to purchase lumber and building materials. On cross-examination defendant admitted receiving the various sums of money from Mr. Dean, including $750 for the purpose of drilling the aforesaid well. With reference to the $2,750 received from Dean on March 22, 1951, defendant testified that he put the money in his business and was unable to drill the well on the property. Defendant admitted he did not set up any form of a trust account within which to keep these payments made by the purchaser of the property. As to the $1,500 received by him for the purpose of erecting a tract house on the property, defendant testified that he did not build it.

Before proceeding to a discussion of the contentions advanced by appellant, reference should be made to certain provisions of the Labor and Penal Codes and some authorities pertinent thereto.

Section 405 of the Labor Code reads:

‘Any property put up by any employee or applicant as a bond shall not be used for any purpose other than liquidating accounts between the employer and employee or for return to the employee or applicant and shall be held in trust for this purpose and not mingled with the property of the employer. No contract between the employer and employee or applicant shall abrogate the provisions of this section. Any employer or prosective employer, or agent or officer thereof, who misappropriates any such property, mingles it with his own, or uses it for any other purpose than that herein set forth is guilty of theft and shall be punished in accordance with the provisions of the Penal Code relating to theft.’

See, also, Labor Code, sections 402–404, 406–408.

Section 487 of the Penal Code provides:

‘Grand theft is theft committed in any of the following cases:

‘1. When the money, labor or real or personal property taken is of a value exceeding two hundred dollars ($200); provided, that when domestic fowls, avocados, citrus or deciduous fruits, nuts and artichokes are taken of a value exceeding fifty dollars ($50) the same shall constitute grand theft. * * *’ (Emphasis added.)

The constitutionality of section 405 of the Labor Code was sustained in People v. McEntyre, 32 Cal.App.2d Supp. 752, 754, 756, 84 P.2d 560 and cases cited therein.

As his first ground of appeal it is urged by appellant that the trial court erred in denying his motion to declare a mistrial and for a continuance. Both motions were made at the conclusion of the prosecution's case in chief.

It appears that Fay Dale Blackburn was the person against whom the theft was alleged to have been committed in counts III and IV of the indictment. These counts were later dismissed upon motion of the district attorney.

Mrs. Blackburn was called as a prosecution witness, was examined in chief and in part only on cross-examination when the trial was adjourned for the day. When the trial was resumed the next morning, the trial judge announced that he had been informed, ‘* * * that Mrs. Blackburn will not be able to be present at the present time for further examination as a witness or cross-examination. We will have to proceed with some other witness.’ Appellant's counsel then requested that the matter go over until the following day, ‘* * * to see if Mrs. Blackburn cannot be produced to the end that we may cross-examine her * * *’. The court then announced that there were other counts in which the witness Mrs. Blackburn was not involved and directed that the trial proceed on some other count. Appellant's motion for a one day continuance was denied and the trial proceeded through that and the succeeding two days when the prosecution rested. The trial was then recessed over the weekend when appellant's motion to declare a mistrial was argued and denied as was his motion for a further continuance. It is appellant's contention that the trial judge abused his discretion in denying the requested continuance to the end that the former might procure the attendance of Mrs. Blackburn for further cross-examination. We perceive no abuse of discretion in the action taken by the trial judge. In the first place, the district attorney moved to strike from the record all testimony given by Mrs. Blackburn and counts III and IV of the indictment which involved her were dismissed. The reason for the non-attendance of the witness was presented to the court by the statement of the district attorney that she was ill; by an affidavit, as well as by the observation of the judge himself when the witness was last upon the stand that ‘she was very distinctly emotionally upset and didn't appear to me to be well’. From the time appellant was appraised of the illness of the witness and during the ensuing days of the trial, no showing was made to controvert the claim that the witness was unable to appear and testify further because of illness. Under the facts here present we cannot say that the court abused its discretion in denying a continuance or in refusing to declare a mistrial. There was no showing of materiality of the testimony sought to be elicited from the witness as to counts other than III and IV, and those counts were dismissed. The testimony given by Mrs. Blackburn related only to the last mentioned two counts. We are unable to find any substantial showing that, as contended by appellant, the ruling of the trial court ‘actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right’.

It is next contended by appellant that the trial court committed prejudicial error in sustaining objections to certain offers of proof made by appellant; that by sustaining such objections the latter ‘was prevented from making his defense’. The offers of proof were made after objections had been sustained to questions asked of appellant while testifying. These questions sought to place before the jury the reason why appellant went to the Antelope Valley. It being the claim of appellant, as announced in the opening statement made by his counsel, that the former went to Antelope Valley for the purpose of raising money with which to pay off existing debts; that by reason of his business activities in the Antelope Valley, appellant had reduced his obligations ‘from something like $100,000.00 to about $47,000.00’. Appellant also offered to prove that the alleged transfer of certain property by Mrs. Blackburn, out of her name, thereby placed it beyond appellant's ‘reach’, and rendered him unable to raise money to meet certain obligations he had contracted to perform with the complainants named in the indictment. As to the aforesaid two counts concerning the Bradfords and the Reinders, we are unable to perceive the remotest connection between the proffered testimony concerning the property in the name of Mrs. Blackburn and any valid defense to the charges contained in the two counts just mentioned. Nor would the inability of appellant to ‘reach’ the aforesaid property furnish any defense for the thefts alleged in counts IX and X wherein Cecil R. Dean was named as the victim. We are in accord with the reasoning of the trial judge that the offers of proof seemed only to raise collateral issues foreign to those tendered by the indictment. As the trial judge cogently remarked, ‘In other words, if I received money and I am to do a certain thing with it, but I embezzle it; the fact that the funds are tied up doesn't help me any. If money is obtained by trick and device or false pretenses, the fact that I can't make good the restitution wouldn't make any difference because restitution would be no defense.’

The ruling of the trial court sustaining objections to the aforesaid offers of proof were correct.

It is urged by appellant that remarks made by the trial judge during the progress of the trial were prejudicial to his rights and tended to improperly influence the jury in its verdicts. In this regard, appellant's brief recites that, ‘There is no particular statement by the trial court that could be singled out as grounds for setting aside these verdicts, however, we do feel that the italicized parts of the court's remarks as shown must necessarily have influenced the jury against the defense when those remarks are coupled with the refusal of the court to receive evidence embraced in the offers of proof in support of that defense.’

At no time during the trial did appellant make any objection to the remarks of the court, nor did he request an admonition to the jury to disregard the same. The contention raised for the first time on appeal lacks substantiality. And, an examination of the record reveals no remarks by the trial court that could be characterized as prejudicial to the rights of appellant or tending to improperly influence the jury in the rendition of its verdicts.

Finally, appellant insists that the court erred in denying his motion to set aside the guilty verdicts and grant a new trial. He particularly challenges the verdicts rendered on Counts I and II as not supported by the evidence and as being contrary thereto.

We find no merit in this contention. A consideration of the evidence hereinbefore narrated leads clearly and convincingly to the conclusion that appellant's guilt was established. As to Counts I and II he offered nothing in his defense other than that the victim received back his money some year and a half after the alleged theft thereof, and executed a ‘release’. This constituted no legal defense.

Testifying in his own behalf, appellant admitted that he kept no bank accounts or separate trust funds, and that the monies received by him from the various complainants were not only mingled with his own but used in the course of his own business and obviously for purposes not contemplated by the terms of his representations made to the various victims, and his covenants and agreements with them.

Applying the provisions of the heretofore mentioned sections of the Labor and Penal codes to the testimony adduced at the trial, the conclusion of appellant's guilt is inescapable. The motion for a new trial was properly denied.

Appellant appeals from the ‘judgment’ as well as from the order denying his motion for a new trial. In the instant case the proceedings were suspended, defendant was granted conditional probation and no judgment was pronounced. However, under the provisions of section 1237 of the Penal Code, as amended in 1951, an order granting probation ‘shall be deemed to be a final judgment within the meaning of this section’.

For the foregoing reasons the order granting probation and the order denying defendant's motion for a new trial are, and each is affirmed.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.

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