v. (1957)

Defendant appeals from judgment of conviction of three charges of grand theft¹ and from order denying motion for new trial. He also attempts to appeal from the verdict which plainly is not appealable. People v. Tompkins, 109 Cal.App.2d 215, 217, 240 P.2d 356.

Appellant's principal argument is that the evidence is insufficient to sustain the verdict with respect to each of the first three counts.

Defendant was business manager of Gardena Valley News, a concern engaged in publishing a newspaper in the city of Gardena. He had been contacted by Mr. Medric Spenard, an importer and exporter, who handled Canadian newsprint and offered him 600 tons of the same. His company was desirous of buying 200 tons, but was unable to handle a 600-ton transaction. Defendant took Mr. Spenard to the Times-Mirror Company and there made a deal for it to buy the entire lot and then re-sell 200 tons to the Gardena concern. The delivered price to Times-Mirror Company was $190 a ton and Spenard had agreed to pay defendant a commission of $5 a ton. The Times-Mirror Company arranged a letter of credit for $114,000 to finance the deal. This was on August 9, 1955. On the 23rd of that month defendant told Mr. Lewis W. Daniels, the operator of a restaurant in Gardena, of the deal and said he needed $500 to give to the broker (Spenard) to insure shipment of the paper; he termed it ‘marginal’ money required to get the paper shipped, meaning a part payment on the purchase price; defendant further told Daniels that if the thing did not materialize he would get his money back but if it went through he would receive $1,000 upon an investment of $500; he further said he would turn the money over to the broker, Spenard, so he could send it to Canada. Defendant did not mention a loan or say he wanted the money for himself; he did say he wanted it to turn over to Spenard to be used as partial payment on the newsprint. Relying upon these representations Mr. Daniels turned over to defendant $500 on that same day.

In the latter part of August defendant also told Mr. Dudley Gray, a Gardena attorney, of the newsprint deal; said he would make a profit of $10 a ton but needed $1,000 to $1,500 to pay down on margin and insure delivery of the paper; that he had to give the money to the Los Angeles representative of the Canadian seller; that $5 a ton was to go to Canada as ‘margin.’ He offered to give Gray half his profit for an advance of the necessary money. A week later he showed Gray the letter of credit and said the money for payment of the purchase price was guaranteed. On these representations Gray gave him $500 on September 15 and another $500 on October 3. This he did ‘for the purposes of paying the Canadian newsprint representative for sending it to Canada;’ ‘[f]or the sole purpose of sending that money to Canada to guarantee shipment of this newsprint down here.’ There never was any mention of a loan between defendant and Gray.

Delays in delivery of the newsprint brought inquiries from Daniels and Gray as to the reasons. Defendant gave various explanations and finally told Gray he had given his money to Spenard; Gray telephoned Spenard and found that the statement was untrue. In fact, Spenard had never told defendant that money was necessary to guarantee delivery, had not asked defendant for any money or been promised any, and did not receive one dollar from him. On one occasion in answer to Daniels' inquiry defendant said that the deal was closed, the paper was in Los Angeles and he was going to Newport over the weekend to pick up the check and get the signature. Defendant himself testified, ‘I always deeded money.’ Asked whether he intended to use Daniels' money for personal expenses he said: ‘Whatever came up first and needed it the worst.’ With reference to the Gray money: ‘What did you intend to do with the money which you got from Mr. Gray? A. Use it the same way; whatever needed first.’ He also admitted that he never gave any of the money received from Daniels or Gray to Spenard. When questioned by Deputy Sheriff Knowles defendant said that he had turned Gray's $500 over to Spenard, followed immediately by the statement that he could not recall, ‘that there might have been part of it.’ With respect to the Daniels money he told Knowles ‘that he had spent it in various ways * * * that he had spent it on his own personal expenses and debts.’

The paper deal was never consummated. In early December Spenard received a telegram from the seller saying that the price had gone up $5 a ton. He then asked defendant whether he would split the increase with him. Defendant declined and apparently this impasse caused the failure of the deal. Defendant received no money from it and the demands made upon him by Daniels and Gray for the return of their money proved fruitless.

Other portions of the state's evidence had a tendency to offset some of the foregoing but it is not necessary to discuss it. Defendant himself was the only witness for the defense. His version of the transactions with Daniels and Gray varied substantially from their testimony, but he was impeached by proof of conviction of three prior felonies, viz., larceny as bailee in Colorado in 1931, issuing checks without sufficient funds in California in 1943, and grand theft in California in 1950. The jury and trial judge rejected his story and adopted that of the complaining witnesses.

The foregoing reśume ́of the facts is built upon testimony and inferences favorable to respondent pursuant to the established rule of review, which requires us to assume in favor of the verdict every fact which the jury could reasonably have deduced from the evidence, and to refrain from drawing contrary inferences of our own. People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778. Those facts are sufficient to support a finding of grand theft (Pen.Code, §§ 484, 487, subd. 1), upon the theory of false pretenses or that of trick and device.

The language of People v. Gilliam, 141 Cal.App.2d 749, 754, 297 P.2d 468, 471, is pertinent: ‘It is settled however, that a promise made with an existing intent not to perform may constitute a false pretense within the grand theft statute. People v. Ashley, 42 Cal.2d 246, 262–265, 267 P.2d 271; People v. Weitz, 42 Cal.2d 338, 343, 267 P.2d 295. The jurors in this case were justified in inferring that defendant at the time of making them intended not to perform his promises.’

Likewise that of People v. Bartges, 126 Cal.App.2d 763, 770, 273 P.2d 49, 52: ‘Without again setting forth the evidence in detail, suffice it to say that it clearly shows that appellant with a preconceived design to appropriate the money to his own use, obtained possession of it by means of fraud or trickery. The fraud vitiated the transaction and the owner is deemed still to retain a constructive possession of the property. The owner does not part with title to the alleged thief where as here, he delivered it to appellant to be applied by the latter to a particular purpose and the recipient, having obtained possession with the preconceived intention to appropriate the money to his own use, subsequently did convert it to his own use instead of applying it to the purpose contemplated by the owner. Under the facts here present there was in contemplation of the law of larceny a ‘taking’. * * * Since the money belonged to Mr. Simmons and appellant acquired possession of it by fraud and chicanery, his holding was without right, and title thereto did not pass to him.' See, also, People v. Hennessey, 201 Cal. 568, 581–582, 258 P. 49; People v. Kirsch, 204 Cal. 599, 602, 269 P. 447; People v. Gilliam, supra, 141 Cal.App.2d at page 758, 297 P.2d at page 473.

Appellant complains of an instruction which he asserts the court gave concerning embezzlement, namely, No. 224 of California Jury Instructions, Criminal (Caljic), but the point cannot be considered for the instructions are not contained in the clerk's transcript or the reporter's transcript on file herein. Nor does it appear that any request was made for inclusion of same in the record, as required by Rule 33(b). The fact that the Attorney General agrees that the instruction was given does not alter the situation. If we were to sanction this indirect method of augmentation of the record it nevertheless would not appear that the instruction was not requested by appellant, nor would the context be apparent. No reversible error could be predicated thereon if we were to take cognizance of the particular instruction. 4 Cal.Jur.2d § 441, p. 267.

There is also an assertion, but no competent showing, that Caljic instruction No. 231 was given in connection with 224. This instruction explains the three forms of theft,—embezzlement, obtaining property by false pretense, and larceny by trick and device. It concludes with this paragraph: ‘[If you should find that the defendant committed theft in any one of the three ways hereinabove defined, you should return a verdict of ‘guilty’, and it will not be necessary or proper for you to state in your verdict which form of theft the defendant committed.]' Appellant complains that it was error, a denial of his constitutional rights, to omit the bracketed language. Again we are unable to entertain the argument because the record is insufficient. If we assume that the instruction was given, it nevertheless does not appear whether defendant did or did not request it. Moreover, the note to instruction 231, found at page 78 of the 1953 pocket part, says: ‘It now is definitely established that the final and bracketed paragraph of this instruction, p. 183, Main Volume, is not correct statement of law and ought not to be given.’

Lastly it is contended that there was error in excluding certain evidence going to the merits of the Jenkins transaction which was the subject of the fourth count of the information, the count upon which defendant was acquitted. This evidence had no bearing upon the first three counts, those upon which defendant was convicted. Obviously the point is frivolous.

The judgment and order denying new trial are affirmed. The appeal from the verdict is dismissed.

FOOTNOTES

1.  Defendant was also charged with petty theft of $200 from one Bruce Jenkins, but he was acquitted on this, the fourth count, of the information, and it is not involved in the instant appeal.

ASHBURN, Justice.

MOORE, P. J., and FOX, J., concur.