People v. Robinson

Appellant Robinson, A. N. Jackson and W. S. Himmelright were jointly charged by an indictment with ten separate offenses of grand theft. Jackson and Himmelright entered pleas of guilty to one of the counts of the indictment and Robinson pleaded not guilty to each count. A jury found the latter guilty as charged upon nine of the counts and upon the other returned a verdict of petty theft. The appeal is from the judgments entered thereon, and the orders denying motions for a new trial.

The counts in the indictment were identical in form except as to the names of the persons whose property was alleged to have been taken and the description of the same, the allegations of the first count being as follows: “The grand jury of the county of Alameda hereby accuses I: W. Robinson, A. N. Jackson, and W. S. Himmelright of a

A number of grounds for reversal are urged, the first being that sections 484 and 490a, 951 and 952 of the Penal Code, under which appellant was charged and convicted, contravenes certain provisions of section 13 of article I of the Constitution in that the pleading required by the statute is insufficient to inform a defendant of the nature of the crime charged, so that he may be prepared to defend, or, upon an acquittal or conviction, to protect him against being again placed in jeopardy for the same offense.

Section 950 of the Penal Code requires that the indictment contain a statement of the acts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended, and section 952 of the same code provides that in charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another. Due process of law requires only that the accused be given sufficient notice of the nature of the charge against him (Rogers v. Peck, 199 U. S. 425 [ 50 L. Ed. 256 , 26 Sup. Ct. Rep. 87 ]; Garland v. Washington, 232 U. S. 642 [ 58 L. Ed. 772 , 34 Sup. Ct. Rep. 456 ] to the end that he may prepare his defense and plead the judgment as a bar' to any subsequent prosecution for the same offense (United States v. Simmons, 96 U. S. 360 [ 24 L. Ed. 819 ]). The state, however, has the right to establish forms of pleading to be observed in its own courts, subject only to the provisions of the federal Constitution involving the protection of life, liberty and property in all the states (Ex parte Reggel, 114 U. S. 642 , 651 [ 29 L. Ed. 250 , 5 Sup. Ct. Rep. 1148 , see, also, Rose’s U. S. Notes]), and in People v. Nolan, 144 Cal. 75 [ 77 Pac. 774 ], where the defendant, an accomplice, was charged in the information as a principal in conformity with section 971 of the Penal Code, it was held that the

There is nothing in this legislation Avliich deprives the accused of his rights under the section of the article of the Constitution upon which appellant relies, namely, the right to appear and defend, or which supports the contention that a judgment based upon pleadings in the statutory form would be an insufficient protection against another prosecution. Moreover, the identity of the offense involved in the plea of former conviction or acquittal rests ultimately in parol proof and may be thus established even though the pleadings be alike. (People v. Faust, 113 Cal. 172 [ 45 Pac. 261 ]; People v. Foster, 198 Cal. 112 [ 243 Pac. 667 ].)

The evidence shows that some time previous to March, 1928, appellant, under the name of Colonial Loan and Discount Company, entered upon the business of loaning money on stocks and bonds, the amount loaned being usually about sixty per cent of the security. The facts of the transaction alleged in the first count of the indictment furnish an

The notes also provided that if in the judgment of the payee the market price of the stock pledged should drop fifteen per cent the payee should have the right to demand further security and if the same was not forthcoming to sell the pledge after twenty-four hours’ written notice. It was also stipulated therein that all securities deposited as collateral, might be sold, pledged, transferred or assigned by the payee at any time, the borrower ratifying anything the payee might do in that behalf. In each instance the stock

Appellant contends that the facts show that title to the stock passed to him, that any promise with respect thereto was of something in the future, and that consequently there was a failure to prove the commission of any crime. ■

As the court said in People v. Tomlinson, 102 Cal. 19 [ 36 Pac. 506 , 507] : “On the facts there must often be a very narrow margin between cases of larceny, obtaining money by false pretenses, an embezzlement, because the character of the crime depends upon the secret intention of the parties, which is often difficult to ascertain; but so far as the law is concerned, the principles upon which the question of guilt or innocence is to be determined are plain. . . . Where one honestly receives the possession of goods upon a trust, and after receiving them fraudulently converts them to his own use, it is a case of embezzlement. If the possession has been obtained by fraud, trick, or device, and the owner of it intends to part with Ms title when he gives up possession, the offense, if any, is obtaining money by false pretenses. But, where the possession has been obtained through a trick or device, with the intent, at the time the party receives it, to convert the same to his own use, and the owner of the property parts merely with the possession and not with the title, the offense is larceny.” And as held in the same case, the questions whether the defendant feloniously took the property or the owner intended to part with title are for the jury. It is manifest from the documentary and oral evidence in the present case that the stock was pledged by the borrowers to appellant. In such cases the general property and title remain in the pledgor, subject only to a lien in favor of the pledgee for the amount of his debt (Wright v. Ross, 36 Cal. 414 ; Brewster v. Hartley, 37 Cal.

It is further urged that the venue of the offenses alleged in counts 6, 7, 8 and 9 of the indictment did not lie in Alameda County. The first three counts alleged the theft of the property of Thomas Bava, consisting of shares of stock in three corporations, which, according to the testimony, was pledged by the owner as additional security to secure the loans from appellant. The original security in each instance was sold by the latter on the day following its receipt for more than the amount of the loan, and the stock which is the subject of the charges in the indictment was subsequently delivered to appellant following a letter and a telephone message which were received by Bava in Alameda County from appellant’s agent. The agent stated that the market price of the stock originally pledged had declined, and that unless further security was furnished the stock would be sold by appellant. It was manifestly made for the fraudulent purpose of inducing Bava to part with additional shares, and it is a fair conclusion from the testimony that it had that effect. Appellant claims, however, that this stock having been delivered in San Francisco and converted there, if at all, the venue should have been laid in this county. This contention must, we think, be sustained, as the evidence was clearly insufficient to show the commission of the offense of larceny in Alameda County and this notwithstanding false representations were made there. As the court said in People v. Edwards, supra: “The taking, in order to support a charge of larceny, must be against the will of the owner or at least without his consent. In other words, the act of taking must be a trespass against the owner’s possession. Though the taking must be against the will of the owner or a trespass to his possession, still an actual trepass or actual violence is not necessary. Fraud may take the place of force. ... In such case the fraud vitiates the transaction, and the owner is deemed still to retain a constructive possession of the property. ’ ’ Or where possession is obtained by the accused upon the. false and fraudulent representation that it is to be used for a special purpose, title still remains in the owner (People v. Solomon, 75 Cal. App. 9 [ 241 Pac. 931 ]).

Nor does the evidence adduced in support of these counts show the commission in Alameda County of the offense of obtaining property by false pretenses. While a false representation is a necessary element of the latter crime, and the venue of the offense may be laid either in the county where the representation was made or the property delivered (People v. Bocchio, 80 Cal. App. 138 [ 251 Pac. 672 ]) in order to prove the offense it is necessary to show that title to the property passed to the accused (People v. Tomlinson, supra; People v. Delbos, 146 Cal. 734 [ 81 Pac. 131 ] ; People v. Shwartz, 43 Cal. App. 696 [ 185 Pac. 686 ]), which here, as shown by the evidence, was not the case.

As to the offense charged in the ninth count, there were no false representations or promises made in Alameda County, nor was the property the subject of the alleged theft delivered or converted there. It appears that Lily H. Hughes, who resided in Oakland, following an offer to make loans without interest to the authors of letters commending a radio program broadcasted by appellant and the receipt of two letters from his office in San Francisco offering her a loan for one year without interest, visited the office. There, following negotiations, she received a loan from appellant and delivered to him the stock described in the indictment. With the exception of the offer by radio and the letters mentioned, which contain no false representations or promises, no communications passed between appellant and Mrs. Hughes in Alameda County, and all promises or representations leading to the delivery of her stock were made in San Francisco. In view of these facts, appellant’s contention that the venue of the offense alleged in this count should also have been laid in the latter county must be sustained.

Several witnesses who had borrowed money from the Colonial Loan and Discount Company and pledged stock as

It is next urged that the testimony of the defendant Jackson, an accomplice jointly indicted with appellant, and who, after entering a plea of guilty, was sworn as a witness for the prosecution, was uncorroborated. This witness testified in substance that he was told by appellant in the presence of the latter’s private secretary that none of the stock pledged was to be sold unless its market value should fall fifteen per cent, in which case before a sale the

The further point is-, made that the court permitted improper cross-examination of appellant. The latter on his direct examination denied that he had told the witness Jackson ■ and others to represent to prospective borrowers that the stock pledged would not be sold. On cross-examination the prosecuting attorney was permitted to inquire as to the salary paid the witness Jackson, and whether appellant was the sole proprietor of the Loan and Discount Company. The object of the cross-examination was to show appellant’s relations with Jackson and the others mentioned by him, and while the subject of the inquiry does not appear to have been material the questions were not improper or prejudicial. In the same connection there was introduced by the prosecution a photographic copy of a letter which appellant admitted was signed by him. The letter was addressed to one Gunderson and stated that contrary to the latter’s impression that the stock deposited with the company was sold, the fact was that no stock was sold unless requested by the borrowers, but was merely transferred to another name for the protection of both parties. The letter tended to contradict appellant’s testimony that his agents were not instructed as claimed by the witness Jackson; and though it was not shown that the letter was mailed to the addressee it sufficiently appeared from appellant’s testimony that while he signed the correspondence of the concern the same was customarily prepared and inferentially that it was subsequently mailed by his employees. In view of the testimony no prejudice was caused by the failure to first lay the foundation for the admission of the letter in evidence.

Two witnesses were permitted over objections to testify that loans were made by him for the concern, and that they were instructed to represent to borrowers that the pledged stock would not be sold, but kept in appellant’s office. Neither witness testified that he was directly instructed by appellant to make such representation. In one case the instructions were given by the witness Jackson, and in the other by appellant’s private secretary, to whom

The further point is made that the court erroneously rejected evidence that prior to the seizure of appellant’s books by the corporation commissioner and the filing of a petition in bankruptcy against him, the borrowers upon the payment of their notes received their pledged securities or their equivalent in stock or cash. The offered evidence was clearly irrelevant and was properly excluded.

It is also contended that the remarks of the prosecuting attorney during the trial constituted prejudicial misconduct. Appellant’s counsel in his closing argument criticised the prosecution for the length of time consumed in the trial. The prosecution in reply claimed that the delay was due to the former’s frequent objections and in that connection referred to objections made upon the cross-examination of appellant, stating in substance that counsel for the latter feared a close investigation of his client’s business methods. In addition to the above, appellant’s counsel on several occasions objected to remarks made by the prosecution, which he assigned as prejudicial misconduct, and prior to the submission of the case moved the court to declare a mistrial, which motion was denied. In each instance where objection was made the jury was admonished to disregard the remarks of the prosecuting attorney, and they were instructed to the same effect at the conclusion of the trial. The remarks excepted to were not such that their possible effect could not be removed by an admonition, and we are satisfied that this result followed the court’s instructions.

It is also claimed that certain of the court’s instructions were erroneous. The jury was instructed that larceny by trick and device might consist of future promises. As hereinabove shown such an instruction was correct. They were also charged in substance that if they found that the agreements between the borrowers and appellant were bona fido loan transactions made without any intention on the part of appellant to use the transaction as a trick or device or a fraudulent means of obtaining possession of their property, then he had a right to dispose of the same at any time and no crime was committed; but should they find from the evidence beyond a reasonable doubt that the agreements were a trick and device used by appellant as a means of obtaining possession of the securities for the purpose and with the intention of feloniously appropriating and converting the same to his own use, then he had no right to do the acts complained of. The latter portion of this instruction to which appellant excepts was no more than a charge that if possession was obtained in the manner stated title to the securities did not pass. In that event, as above shown, the subsequent conversion of the property constituted larceny.

The court also instructed that where a defendant is charged with crime, neither the acts nor statements of his agents or employees are chargeable against him unless such acts and statements are authorized by him. Appellant’s objection to the instruction is that the jury should have been told that such acts or statements, in order to be chargeable to the principal must be directly authorized by him. Notwithstanding language to that effect in some of the cases, we are of the opinion that if such acts or statements are authorized, whether the authority is given directly or indirectly is immaterial, and that the instruction correctly stated the law. The jury was instructed on the subject of conspiracy and it is claimed that the instructions

There is no merit in the claim that title to the stock deposited by the borrowers passed to appellant, and that consequently the offense of larceny was not proved. The notes, as well as the testimony, show that the stock was pledged and while appellant was given the power to sell under certain circumstances, this was not equivalent to a transfer of title to him. That he converted the pledged stock to his own use is not disputed, and the evidence shows beyond a reasonable doubt that this was the culmination of a fraudulent scheme whereby he obtained possession with the felonious intention of appropriating the property.

While it will be necessary for the reasons stated to reverse the judgments entered upon the sixth, seventh, eighth and ninth counts of the indictment, the verdicts upon the remaining counts were sufficiently sustained by the evidence, and the record discloses no error which reasonably supports the conclusion that the same resulted in a miscarriage of justice. The judgments entered upon the sixth, seventh, eighth and ninth counts of the indictment are accordingly reversed, and the judgments entered upon the first, second, third, fourth, fifth and tenth counts therein with the orders denying appellant’s motion for a new trial thereof are affirmed.