People v. Holmes

Defendant was informed against for the crime of embezzlement charged to have been committed in the county of Los Angeles on March 5, 1909, by appropriating and converting to his own use three promissory notes of the value of $150 each and a mortgage for $450 executed to him by one Nellie Messinger and which had been intrusted to his control and possession. An information was filed; July 17, 1909, on which defendant was arraigned and to which he filed a demurrer which was overruled; and thereafter he entered a plea of not guilty and the trial of the cause was set for September 20, 1909. August 10, 1909, a new information was filed by order of the court, on which defendant was arraigned and given until August 18, 1909, to plead. On that day, and before entering a plea, he made a motion to set aside the information on the ground that he had not been legally committed by a magistrate, and also a motion to dismiss the action because the new information had not been filed within thirty days after he had been held to answer. Both of these motions were denied; whereupon he filed a demurrer to the new information, which being overruled, he entered a plea of not guilty to the charge contained in the new information, and thereupon, by consent of defendant, the trial of the cause was set for September 17, 1909. In the minutes of the court for September 17, 1909, appears the following order: “The District Attorney with the defendant and his counsel being present in court, and this being time set for trial of this cause, and the time of the

The rulings of the trial court upon all the foregoing motions made by defendant were excepted to and are assigned as error for review on this appeal. Only the two motions to dismiss the prosecution, made under the provisions of section 1382 of the Penal Code, however, are specially presented, and the only authority cited in support of appellant’s contention in respect to these is the section itself. Defendant also assigns as error the refusal of the trial court to give to the jury two certain instructions requested by him. The first of these reads as follows: “You are instructed that, if the evidence shows that the defendant sold, assigned and transferred all his right, title and interest, in and to the notes and mortgage, openly and avowedly, the defendant believing he had the right so to do, that you should acquit the defendant.” The second as follows: “You are instructed that if the evidence shews that the defendant believed the notes and mortgage was a part of a copartnership fund belonging to the defendant and Mrs. Messinger, that you should acquit the defendant.”

The motion to dismiss a prosecution because the information has not been filed within thirty days after the defendant

In presenting the motion to dismiss because the cause was not brought on for trial within sixty days after the filing of the information, the date of the filing of the original information is relied upon by appellant, instead of the date of the filing of the information upon which the trial was had. If it be conceded that the date of the filing of the original information is the one which should be considered in connection with this motion, the motion was, nevertheless, properly denied. The affidavit filed and showing made by the district attorney in excuse of the delay was sufficient to justify the court in denying the motion, as the matter in the affidavit showed “good cause to the contrary.” (Pen. Code, sec. 1382; People v. Moran, 144 Cal. 48 , 56, [ 77 Pac. 777 ].) In addition to this, it does not appear from the record that the defendant objected to the setting of the cause for trial on a date more than sixty days after the filing of the information, he and his counsel being present in court at the time when the case was set for trial on September 27, 1909. (People v. Douglass, 100 Cal. 1 , 4, [ 34 Pac. 490 ].)

The first instruction refused by the court was no doubt an attempt to state the law covered by section 511 of the Penal Code: “Upon any indictment for embezzlement, it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred

The second instruction was only another way of stating the same legal proposition attempted to be covered by the first, but limiting the claim of title to a special or copartnership right in the property. There is the same failure to include the essential element of claim of title preferred in good faith which is apparent in the first instruction. Whether we accept the theory of the prosecution that the deposit of the notes and mortgage with defendant related to the purchase of only one rooming-house, or that of the defendant that it also included the purchase of others or another, the only reasonable inference to be drawn from the evidence is that the defendant’s right to the notes and mortgage did not ripen until the' rooming-house or houses had been purchased, and that he merely held them in trust as an earnest of the complaining witness’ good faith that she would become a partner when the purchase or purchases were completed, and this contingency never occurred.

There is no evidence that defendant ever gave anything as a consideration for the notes and mortgage; he never made any purchases of any rooming-house, and, according to the uncontradicted evidence of the witness best qualified to say, he never even had an option on the property in connection with which he claimed the right to use the complaining witness’ notes. He made no effort to close up any of the transactions upon which his right to the notes depended, and as soon as he converted the property which he is charged with embezzling he immediately left the state. We are un-

No cause for a reversal being presented, the judgment is affirmed.

Allen, P. J., and Shaw, J., concurred.