People v. Walker

The defendant was charged with the crime of embezzlement by an information filed in the superior court on November 24, 1897, and on January 11, 1898, he-was convicted of said crime. On February 6, 1898, he was brought into court for judgment, and before judgment duly made a motion for a new trial upon all the statutory grounds, and after hearing the argument the motion for a new trial was by the court on the said day denied. Thereafter on said day the court pronounced judgment, and sentenced him to imprisonment in the state prison at Folsom for four years. No appeal was ever taken by defendant from the order denying the new trial, and no appeal was taken, or attempted to be taken, from the judgment for more than a year after it was pronounced. The judge before whom the case was tried and who denied the motion for a new trial afterwards went out of office, and the subsequent proceedings hereinafter mentioned were before his successor. On June 9, 1899, after the time for appeal from the judgment had expired, defendant made several motions in the superior court, and, among others, to be discharged from imprisonment on the ground that the information was insufficient because it did not state facts constituting a public offense, etc.; also to vacate the judgment

The court was right in refusing to entertain the second motion for a new trial. The former motion had been properly made, and at the right time,—to wit, “before judgment,” as provided in section 1182 of the Penal Code. The motion had been duly heard and denied, and no appeal had been taken from the order denying it; and the right to move for a new trial had thus been exercised and exhausted. Of course, this is entirely different from the case where a motion for a new trial has been by the trial court granted, or on appeal an order denying the motion has been reversed and a new trial ordered, and a new trial has taken place; in that instance, after the

But in People v. Keyser, 53 Cal. 183 , approved in Walker v. Superior Court, 135 Cal. 369 , it was held that on an appeal from the judgment a defendant, without having made a motion for a new trial, may rely on any of the grounds of exceptions mentioned in section 1170 of the Penal Code, although in such case he must have a bill of exceptions as provided in section 1171. Said section 1170 provides for exceptions to decisions of the court, among other things, “in admitting or rejecting testimony, or in deciding any question of law not a matter of discretion.” And the bill of exceptions in this case shows a ruling in admitting testimony which we think was clearly erroneous and prejudicial. Appellant was charged with the specific offense of embezzling a particular sum of money,—to wit, $80.35,—which was the amount of a certain check. This money was charged to have been the property of a certain corporation called the American Tract Society, of which appellant was averred to have been the agent and servant. At the trial the prosecution introduced as a witness one John Crawford, an expert accountant, and over the objection of appellant he was allowed to testify that he had examined the books of said corporation, and that these books showed that there was a general balance due from appellant to the corporation of about four thousand dollars, or, as counsel calls it, a shortage. The admission of this testimony was erroneous. It has been held that in prosecutions for certain offenses—as, for instance, embezzlement and forgery—evidence may be introduced of other specific offenses of the same kind as the one charged, committed by the defendant at or about the time of the alleged commission of the offense for which he is being tried,—as evidence to show guilty knowledge or intent. This rule, however, is an exception to the

Appellant contends that the information is fatally defective; but assuming that this point can be raised on this appeal, the contention is not maintainable. The information sufficiently shows that the American Tract Society was an existing corporation; and the averment that the money charged to have been embezzled “had come into” the possession, control, etc., of appellant was sufficient on that- subject. (People v. Ward, 134 Cal. 303 .) There are some other objections to the information which, in our opinion, are not well grounded and do not call for special notice.

The judgment appealed from is reversed and the cause remanded for a new trial.

Beatty, C. J., concurred in the judgment.

I concur in the reversal of the judgment upon the ground that the evidence as to the general shortage was improperly admitted, and also concur in what is said in the opinion of Mr. Justice McFarland in regard thereto.

I am not, however, satisfied, owing to the peculiar language of our statute, (Pen. Code, sec. 1201,) that the defendant did not have, the right when arraigned for judgment under the mandate of this court (People v. Walker, 132 Cal. 137 , 143), to show, “for cause against the judgment . . . that he has good cause to offer . . . for a new trial,” notwithstanding the fact that he had, prior to the giving of the judgment

I am not prepared to say that the defendant was not entitled to move for a new trial.

I am satisfied, however, that it was prejudicial error to admit the testimony concerning the general balance shown by the books of the corporation to be due from the appellant.

On that point, and on all others, save the matter of the right of defendant to move for a new trial, I fully agree with the reasoning and conclusion reached by Justice McFarland and concur in the judgment of reversal.

I dissent. The evidence of the shortage was material and competent evidence for the prosecution, irrespective of the question whether or not it was admissible to show other embezzlements. It will not be disputed that evidence which has a legal tendency to prove the crime charged is not rendered inadmissible by reason of the fact that it may also have a legal tendency to prove some other offense. (People v. Sanders, 114 Cal. 230 ; People v. Ebanks, 117 Cal. 652 .) The defendant was charged with the embezzlement of the sum of $80.35. It was shown by the testimony of Elizabeth Stevens that he had received the money in question and had appropriated it to his own use. It was necessary to show that this appropriation was with a fraudulent intent to deprive the owner thereof. It was also necessary to show that he had no right to appropriate it. Nothing is presumed in favor of the prosecution. Every reasonable doubt of the defendant’s innocence must be excluded by the evidence, or his guilt is not established.

It appeared that there was a general account between the defendant and the Tract Society. If upon this account money was at the time due to the defendant he would have had the right to apply it in payment, pro tanto, upon the amount due, and thereupon to appropriate it to his own use. And if he failed to make the entry the law would make the application for him and set off one debt against the other. If, on the other hand, the balance of the account was against him, he

It was also proper to show the state of the account at the time of the appropriation and the amount of the balance against the defendant, in order to prove his motive and fraudulent intent in appropriating the money. If one receives money belonging to another to whom he is already indebted in the sum of four thousand dollars, and thereupon appropriates such money to his own use, the inference that he intended to deprive the owner thereof is certainly much stronger than it would be if he did not owe the other person anything or only a small sum. If there was an account between them on which the balance was very small, he might with some plausibility urge the claim that he was uncertain about the matter and believed that there was a balance in his favor, and in that belief innocently use the money for his own benefit. But such a claim would receive but little credit if the account showed a large sum against him. The evidence therefore had a legal tendency to prove the intent, and to rebut any inference of an innocent intent, and was admissible for that purpose. “As a general rule, great latitude is allowed in the range of evidence when the question of fraud is involved.” “It is hardly ever possible to prove fraud, except by a comprehensive and comparative view of the actions of the party to whom the fraud is imputed, and his relative position a reasonable time before, at, and a reasonable time after the time at which the act of fraud is alleged to have been committed.” (Reeves v. State, 95 Ala. 31 ; Snodgrass v.