People v. Burns

Defendant was convicted upon an information charging him with the crime of grand larceny. He appeals

It appears from the record that -about March 1, 1910, the complaining witness, Frank Brayer, a German laborer having little knowledge of the English language, went to San Diego from Los Angeles and for eight dollars per month secured a room in a lodging-house conducted by defendant and his wife, with neither of whom prior to such time was he acquainted. At this time Brayer had $135 in cash and on deposit with the Security Savings Bank of Los Angeles the the sum of $1,500, and also had on deposit with the German-American Savings Bank of Los Angeles the sum of $2,040.

From the time Brayer entered defendant’s lodging-house he indulged in the excessive use of liquor, as a result of which he wasi in -a continuous state of intoxication, which rendered him during a great part of the time both physically and mentally helpless. About March 15th, while in this condition of incapacity, he authorized a transfer of $1,000-from the GerrnanAmerican- Savings Bank to the Bloehman Banking Company in San Diego, signing a receipt therefor by means of his mark. A few days thereafter defendant forwarded to the GermanAmericam Savings Bank another receipt, purporting to be likewise signed by Brayer, for the balance of said deposit. The bank, as a precautionary measure, it seems, sent the ■money to the Bloehman Banking Company, where it was deposited to Brayer’s credit. All of this amount, except $15.11, was drawn- out of the bank upon various checks payable to defendant, nearly all of which purported to be signed by the-mark of Brayer, witnessed by the signatures of others. It appears, however, that the signatures of these persons so signing as witnesses were by defendant procured upon blank checks before they were filled out, and before Brayer had made his purported mark thereon-. On or about March 15th, defendant presented to the Merchants’ National Bank of San Diego a draft, payable to S. J. Bums, on the Security Savings Bank of Los Angeles for the sum of $1,500, which dr-aft purported to be signed by Brayer, -and stating that he desired to use it at once, requested the cashier to ask the -Security Savings Bank to notify him by wire if paid. This draft was returned with a statement that the signature was irregular. Another draft was prepared, which was likewise unpaid, and

There is a conflict of evidence as to whether Brayer signed this $1,500 draft. The evidence, however, clearly tends to prove that if he did sign it, his signature thereto was procured while he was in a state of intoxication which rendered him incapable of intelligent action, and by means of a scheme and trick devised and planned by defendant for the purpose of feloniously obtaining possession of the money with the intent to convert it to his own use and that he did so convert it. Without undertaking to recite the voluminous evidence tending to establish the many circumstances pointing to defendant’s guilt, it is sufficient to say that the jury was warranted in its conclusion that no authority was given for the act by means whereof defendant obtained possession of the $1,500 which Brayer had on deposit with the Security Savings Bank. There is no merit in the contention that the evidence is insufficient to justify the verdict.

For the purpose of showing the motive accompanying the acts of defendant in securing the $1,500, the court, over defendant’s objection, permitted the district attorney to introduce evidence touching the withdrawal of the money deposited to Brayer’s account in the Blochman Banking Company. This ruling is assigned as error. It appears that on March 16, 1910, $1,000 was deposited in Brayer’s name with the Bloch-man Banking Company, followed on March 31st by a deposit of $1,040.11; that between March 16th and May 20th this entire sum, less $15, was drawn out by defendant by means of twelve checks presented on as many different days, the amounts of which checks varied from $75 to $300 each, all of which were drawn by defendant payable to himself, and the

Two informations charging defendant with grand larceny were filed by the district attorney, one of which, numbered 16,307, based upon the proceedings had before the magistrate on July 13, 1910, upon which charge a commitment was issued, charged him with grand larceny in the felonious stealing of $300 from Frank Brayer on May 20, 1910; the other, numbered 16,308, being the one upon which defendant was tried and convicted, and based upon the hearing and proceedings had before the magistrate on July 21, 1910, upon which commitment was issued, charged him with the larceny of $1,500 from Frank Brayer on March 28, 1910. Defendant made a motion to set aside the information No. 16,308, and upon which defendant was tried, upon the ground that defendant had not been legally committed by the magistrate before the filing of the information. The motion was denied. It appears that the testimony adduced at the examination held by the magistrate on July 13, 1910, for the stealing of the $300, was substantially the same as that presented on July 21, 1910, at the hearing upon the complaint charging defendant with the stealing of the $1,500. At the first hearing defendant was committed for the larceny of $300 on May 20, 1910, and at the second hearing he was committed for the larceny of $1,500 on March 28, 1910. Appellant’s argument in support of his contention that the ruling constituted error is based upon the theory that two criminal charges were preferred upon the same state of facts. This, of course, cannot be done. Such, however, is not the case here. The larceny of the $1,500 obtained from the Security Savings Bank is entirely distinct and separate from the transaction had by defendant with the Blochman Banking Company, by reason whereof he was charged with feloniously obtaining possession of $300 belonging to Brayer. Nor would the fact that because in the one case evidence touching upon the other was introduced disqualify the magistrate from acting at the hear

The court refused to give certain instructions requested by defendant. One of these was to the effect that if the $1,500 alleged to have been stolen by defendant was taken at various times and in sums of less than $50 each, defendant could not be convicted of grand larceny. Not only was the subject of this instruction fully covered by other instructions, but since the taking was of the entire deposit of $1,500, possession of all of which was obtained at one and the same time, and the act of conversion was complete, if converted at all, when deposited in the Merchants’ National Bank to the account of S. J. Burns, controlled by defendant, there was no theory of the ease under which the instruction was proper.

The effect of another instruction requested was to take from the jury the consideration for any parpóse of all evidence pertaining to transactions had by defendant with the Blochman Banking Company in securing Brayer’s money deposited therein. In view of what has heretofore been said upon the admissibility of this evidence, it must necessarily follow that defendant was not entitled to an instruction in the unqualified form requested. The substance of other instructions requested appears to have been embodied in instructions given by the court of its own motion.

At the request of the district attorney, the court instructed the jury to the effect that the presumption of innocence with which the law clothes one charged with the commission of crime, thus casting the burden of establishing his guilt upon the state, is not intended to aid the guilty, but to guard the innocent from unjust punishment. Appellant insists that the giving of this instruction was an invasion of the province of the jury by the court, in that it emphasized the probability existing in the mind of the court that defendant was guilty. We do not so regard it. Moreover, as the instruction was but a correct statement of the reasons underlying the law, error cannot be predicated thereon.

On cross-examination, Brayer testified that he did not tell the district attorney that defendant was his agent, nor that he had given to defendant to keep for him the $1,500 for the

The record discloses no prejudicial error. The judgment and order are, therefore, affirmed.

Allen, P. J., and James, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 14, 1911.