PEOPLE v. FOSS (1936)

This is an appeal from a conviction of grand theft and from an order denying a new trial. Appellant and four other individuals formed an association to be known as the Pasadena Stage and Screen Club. They adopted a constitution and by–laws and elected officers. Appellant was elected executive secretary and chairman of the entertainment committee. It was provided in the constitution and by–laws that no member or officer of the club should receive any compensation from the club for any work which he personally might perform. It was also provided therein that all moneys belonging to the club should be deposited in a specific bank. Checks for the outgo of money were to be signed by the treasurer and countersigned by the president, and not by the appellant. It was decided that an entertainment should be put on at a large hotel in Pasadena. The task of selling the tickets and securing the entertainment was turned over exclusively to appellant. Appellant hired several women to put on an extensive telephone campaign to solicit the citizens to purchase tickets at the price of one dollar each for such entertainment. These women under their contract with appellant were to receive 25 per cent. of the amount obtained from the sale of each ticket. Tickets amounting to more than $1,100 were sold and the money collected. This was the minimum. Appellant also sold tickets in lots of five, but the amounts of these sales could not be easily proved, for he collected himself for the larger sales without the intervention of others. Eighty per cent. of all sales were paid for in cash. At the meetings of the club appellant stated that he was receiving practically no cash from the sale of tickets. At no time did appellant ever turn over any cash to the treasurer of the club; on the contrary, he converted the cash to his own uses. It is our duty on appeal, of course, to review the evidence in the light most favorable to the successful party.

Appellant's first contention is that, being a member of the club, he could not be guilty of embezzling moneys belonging to the club, that the club was a partnership, and, being one of the partners, he could not steal or embezzle from himself. There is substantial evidence in the record that there was no partnership, no joint venture, no agreement to share either in the profits or in the losses; indeed, there was an agreement that no member would receive any compensation and that all the proceeds would go for a clubhouse; also that the appellant was the agent of the club for the purpose of collecting and accounting for the money collected.

Appellant's next contention is that there was no substantial evidence that there was a duty upon the part of the appellant to turn over the funds before the date alleged in the information. This contention has already been shown to be without merit. A prior demand under the circumstances was not necessary. People v. Goodrich, 142 Cal. 216, 75 P. 796.

Appellant next contends that the evidence is not sufficient for the reason that the damaging testimony against appellant is the testimony of accomplices uncorroborated by other evidence. Under this point, he contends that the women who sold the tickets over the telephone were accomplices. It would be hard to find any evidence in the record to indicate that these women were accomplices of the appellant; certainly there is substantial evidence that they were not accomplices.

Appellant's next contention is that the evidence did not establish that the defendant had not paid out all of the money received by him in necessary authorized commissions and expenses. It must be borne in mind that on appeal this court is not discussing the weight of the evidence. It is sufficient to say that there is substantial evidence in this regard.

Appellant next contends that the court erred in refusing to give certain instructions which were requested by the appellant. In this behalf he sets out in full twelve different instructions. Appellant makes no attempt to show wherein the action of the trial court was erroneous aside from the mere statement that its refusal to give the instructions was in each case erroneous. He has neither cited authorities nor presented argument to show in what manner the rulings were either erroneous or prejudicial. “Contentions supported neither by argument nor citation of authority are deemed to be without foundation and to have been abandoned.” Bradley v. Butchart, 217 Cal. 731, 747, 20 P.(2d) 693; 2 Cal.Jur. 732.

Appellant's final contention is that the court erred in commenting on the evidence in one of the instructions. At the appellant's request the court instructed the jury that the mere fact that the defendant did not render an accounting is not sufficient to convict him, and that in considering this phase of the case they were entitled to take into consideration any testimony which had been adduced to the effect that at the time of the defendant's arrest he was sick in bed and thereafter he was confined in jail. The court gave this instruction, but added thereto by briefly narrating a few circumstances developed by the evidence which tended to militate against the defendant's contention. The court's comment was fairly within the record, and was warranted under the terms of the constitutional provisions (Const. art. 6, § 19, as amended in 1934). People v. De Moss (Cal.Sup.) 50 P.(2d) 1031.

Judgment and order affirmed.

CRAIL, Presiding Justice.

We concur: WOOD, J.; McCOMB, Justice pro tem.