People v. Stanford

This is an appeal from a judgment of conviction of the crime of grand theft, after trial by the court sitting without a jury.

Appellant was employed as the attorney in a proceeding to probate the will of Edwin R. Stevens, deceased, by his widow, Jennie C. Stevens, upon the recommendation of Mrs. Edith Christy who had been a friend of Mrs. Stevens for forty years and who had known appellant since his childhood. Mrs. Stevens was about seventy-five years old at the time, was unaccustomed to business dealings and signed everything appellant gave her to sign. Upon appellant’s advice Mrs. Stevens applied for letters testamentary of her deceased husband’s estate and was appointed and qualified as executrix. Later, she resigned as executrix and appellant was appointed and qualified as administrator with the will annexed and administered the estate.

On March 5, 1936, and before the estate was closed, at the suggestion of appellant, Mrs. Stevens conveyed to appellant all of her property, including the property to which she was entitled as the sole devisee under her husband’s will, in trust for her life, the remainder upon her death to be distributed to designated persons. Appellant later prepared a letter dated July 18, 1936, authorizing him to invest $10,560 of

The mortgage was not executed on the property until September 16, 1937. It was not delivered to Mrs. Stevens and was not recorded until April 21, 1939, which was after The State Bar began an investigation of the matter. (See Stanford v. The State Bar, 15 Cal. (2d) 721 [ 104 Pac. (2d) 635 ].) The mortgage covered only a little more than one-sixth of the total area purchased. Under its unusual and novel terms the mortgagors (appellant and his wife) agreed to pay Mrs. Stevens $45 per month “which sum is understood to be the equivalent of interest at the rate of 5 per cent (5%) per annum on the sum of $10,800 but not actually to be interest on any obligation”. It also provided that the mortgagors were not obligated “by promissory note, or any promise at all, to pay to the mortgagee any sum of money whatsoever”. The mortgage was to be for five years and was renewable for an additional five years at the option of appellant and his wife. The mortgagee was given the right of foreclosure ninety days after August 15, 1946, at which time Mrs. Stevens would be eighty-six years of age.

On July 18, 1936, appellant, as trustee, drew a check on the trust account for $500 and deposited it in the escrow referred to as the initial payment on the purchase price of the property. This transaction is the basis of count one of the indictment. On July 26, 1936, appellant drew out

Appellant was found guilty of grand theft on the theory of embezzlement on each of these three counts. On count four charging appellant with the crime of grand theft in that on or about May 27, 1937, he wilfully took the property of Jennie Stevens consisting of the sum of $240, and count five charging him with grand theft in that on or about May 1, 1939, he wilfully took the property of Jennie Stevens in the sum of $675, the trial court found appellant not guilty. Motion for new trial was denied.

There is ample evidence to sustain the judgment of conviction and the order denying the motion for a new trial. Appellant suggested to Mrs. Stevens the creation of the trust of all of her property and that he should be trustee. He knew that Mrs. Stevens was unaccustomed to business dealings, had implicit confidence in him and signed everything he gave her to sign. The funds came into his hands as trust funds and he used them in the purchase of property which became the property of himself and wife. Under the terms of the mortgage there is no assumption of liability by himself or wife but instead there is an express provision therein that neither petitioner nor his wife should be personally liable for the indebtedness. He did not deliver or record the mortgage until three years after the purchase of the property and then only after investigation of his activities was commenced by The State Bar. Moreover, the mortgage embraced only part of the property purchased with the trust funds. Although an attorney, and presumably competent to judge the duties of a trustee, he procured her signature to a document which no person with a knowledge of business would have approved even if there had been no trust relation between the parties.

There is no merit in appellant’s contention that the entire transaction could not constitute more than one offense,

While transactions in series have frequently been held to constitute but parts of one continuous proceeding, and hence but one offense, this result is more commonly reached in cases of larceny than in those of embezzlement. This follows from the fact that in the crime of larceny the defendant has obtained possession of his victim’s property by wrongful means, and completion of the offense is not dependent upon whether he thereafter appropriates the fruits of his theft by a single act or at successive intervals. On the other hand, in the case of an embezzlement, the property is already in the rightful possession of the defendant, and his subsequent fraudulent appropriation is of the essence of the crime. (Pen. Code, sec. 503.) Thus in each of the cases relied upon by appellant (People v. Sing, 42 Cal. App. 385 [ 183 Pac. 865 ] ; People v. Bratton, 125 Cal. App. 337 [ 14 Pac. (2d) 325 ] ; People v. Fleming, 220 Cal. 601 [ 32 Pac. (2d) 593 ] ; People v. Dillon, 1 Cal. App. (2d) 224 [ 36 Pac. (2d) 416 ]), the particular facts and circumstances showed that the exact time of completion of the misappropriation was not eontroling and for this reason the court was justified in concluding that the several transactions involved constituted one offense. In the present case, the evidence, as already stated, established clearly the commission of separate offenses by distinct appropriations of different sums of money on separate occasions. The rule of People v. Hatch, supra, and like cases above cited, is therefore the one properly applicable.

The judgment and order denying a new trial are, and each of them is, hereby affirmed.