People v. Heape

Defendant was charged with the larceny of $250, the property of one Bruce G. Kingsley. He was found guilty as charged, and now appeals from the judgment of conviction.

A general outline of the case, as shown by the People’s witnesses, sufficient for an understanding of the points to be

Kingsley did not have more than about $250 in ready money available for the purpose of his agreement, and it was therefore agreed between him and defendant that instead of paying the full amount of $1,000 in cash he would give his check for $250 to defendant, and also deliver a certain trust deed which had been executed in Kingsley’s favor by certain parties some years previously to secure an indebtedness evidenced by a promissory note upon which the sum of $1,019.19 remained unpaid. Pursuant to the last-mentioned agreement—entered into contemporaneously with the one first mentioned—Kingsley delivered his check for $250 to defendant, payable to the latter’s order, and also delivered to him the trust deed and the note secured thereby. Thereupon defendant delivered to Kingsley a written receipt, which recited that the trust deed was to be used by the Great Western Builders Inc. “as collateral security to the extent of not less than $750.00, until such time as Dr. Kingsley shall remit $750.00 in currency, said deed to be thereupon, returned to the said Dr. Kingsley immediately.” The receipt also recited that the cheek for $250, with the $750 so to be raised on the trust deed, “shall be taken to apply ... as payment of the sum of $1,000 referred to” in the first-mentioned agreement.

It is contended that the court erred in its rulings upon objections to certain evidence, and also in refusing certain instructions requested by appellant. We shall consider appellant’s points in the order of their presentation.

[1] On his cross-examination the complaining witness, on being asked by defendant’s counsel if he knew what had become of the trust deed and the note which he had delivered to defendant to be used as collateral in raising the sum of $750, replied that he had since learned that they had come into the hands of a certain law firm in Los Angeles, but that he did not know how the firm had obtained possession of the documents. Thereupon defendant’s counsel propounded this question: “Did you ever have a conversation with Mr. Heape [the defendant] in which you spoke or talked of this trust deed and note, and how it got into these people’s hands?” To this question the court sustained an objection interposed by the district attorney. Appellant assigns this as error. We cannot perceive how it was possible for appellant to he injured by the ruling. He was not charged with the theft of the trust deed or of the note secured thereby. He claims that if the question had been answered in the affirmative and had then been followed by a question educing the conversation, it might have been shown

[3] Moreover, no offer was made by appellant to prove by the conversation, if any was had, any specific fact or facts. The purpose of the question, as now stated by appel

[4] The complaining witness, when testifying on his direct examination, stated that the $250 represented by the cheek which he had given defendant was never returned to him. In the course of his cross-examination the witness testified that he never received any consideration from defendant prior to the latter’s arrest. He also' testified that just previous to defendant’s preliminary examination the latter gave the witness three documents. What those documents were does not appear, for at this point in the witness’ narrative he was interrupted by an objection interposed by the district attorney to any evidence as to defendant’s acts subsequent to his arrest. Prom the colloquy which then ensued between court and counsel it appears that it was the purpose of defendant’s counsel to show by his client’s conduct that it was not the latter’s intention to appropriate the $250 to his own use in violation of the agreement which had been made with the complaining witness on October 3, 1923. Without making any specific ruling upon the objection, the learned trial judge stated from the bench that the rule in such cases is that evidence of a defendant’s conduct after his arrest is not admissible in his favor on the question of intention in taking the property. There was no intimation from the court that counsel could not show by his cross-examination of the complaining witness anything which may have been said or done by defendant prior to his arrest. The rule thus announced by the court was as favorable to appellant as he could rightfully expect. As we already have stated, evidence of the acts or declarations of one accused of larceny done or made after he becomes aware that he is charged with the theft, and when he has had an opportunity to concoct a defense, is not admissible in his favor. After the court had thus announced the line of demarcation which delimits such acts and declarations of an accused as are admissible in his behalf, defendant’s counsel propounded to the complaining witness this question: “Did he [defendant] ever give you anything in the way of money or property?” The question was objected to by the district attorney upon

[5] The court sustained objections to each of the following questions propounded to the complaining witness on his cross-examination: “Did you ever have a conversation with Mr. Heape in which you asked for $2,800?” “Did you ever make any demand for any more than $250, or the trust deed?” We are told by appellant’s counsel that the purpose of these questions was to show that Kingsley made unreasonable demands upon defendant; wherefore it is argued that if such demands were made their unreasonableness would tend to explain and to excuse defendant’s failure to return the $250. The questions were so general and indefinite as to time that the witness might have answered concerning demands made by him as recently as a date subsequent to the consummation of the crime and after defendant’s arrest, or even as recently as some time during the progress of the trial. Obviously, no act of omission or commission on appellant’s part, no matter what the excuse therefor may have been, could absolve him or justify his crime if it occurred subsequently to the full consummation of the alleged larceny, which, if committed, must have culminated at a time prior to the filing of the complaint with the committing magistrate. Appellant’s counsel made no attempt to ask the witness any question which would have directed his attention to a time prior to the date when the alleged larceny, if committed,

[6] After having testified that he received the check for $250 from Kingsley and that he had deposited it in his bank so as to mingle it with his other funds, defendant, who had taken the stand as a witness in his own behalf, was asked by his counsel on his direct examination to state, not what he had done with the $250, but what he had done with all his funds—the product of moneys which he .had received from time to time in his business transactions. The court, on objection being made by the district attorney and after the witness had commenced to answer the question, refused to permit defendant to testify further along that line. This is now assigned as error, appellant claiming that had he been permitted to testify as to what he had done with all of his funds it would have had a bearing upon the question as to whether he had an intention to defraud Kingsley at the time when he received the latter’s cheek for $250. We fail to perceive how the testimony could have been material or relevant to the issue of fraudulent intent. Moreover, the court expressly announced from the bench, during the ensuing colloquy, that appellant would be permitted to testify as to what resources he had for carrying out his contract with Kingsley and also that he might give the reason why he did not “go ahead” with that contract. Accordingly, defendant testified that the reason why he did not proceed with his contract was that certain moneys which his business associate expected to have available for the purpose were not forthcoming. Having been allowed thus to state what he claimed was Ms sole reason for failing to perform his promissory representations to Kingsley, we are utterly unable to perceive how he could possibly have been injured by the ruling of which he now complains.

[8] When the prosecution was putting in its case in chief it was shown by the People’s witnesses that there never was such an entity as the Great Western Builders Inc., or if there was, that defendant had no connection with it,' Defendant, testifying in Ms own behalf, gave evidence to the effect that preliminary steps were taken by him as early as September of 1923 to incorporate a company to be known as the Great Western Builders Inc., but that the incorporation was never completed. It seems to be conceded that on October 3, 1923, when appellant, in the name of the Great Western Builders Inc., entered into the contract with Kingsley, there was no corporation of that name with which appellant had any connection whatever. Having testified that steps preliminary to the incorporation of such a company were taken by him in September, 1923', appellant was then asked by his counsel to state why the incorporation was never completed. The district attorney objected to the question upon the ground that it was incompetent, irrelevant and immaterial. The court sustained the objection. Appellant now contends that the evidence sought to be elicited by the

[9] The- defense called to the witness-stand an acquaintance of the defendant, who testified that he had a conversation with Kingsley in the month of March or April of 1924. This was some, five or six' months subsequent to the execution of the contract with Kingsley, or two or three months after the expiration of the ninety days within which the contract was to be performed, and was subsequent to the time when the crime of larceny must have -been fully consummated by appellant-—if crime there was. The witness was asked to state his conversation with Kingsley. The question was objected to by the district attorney and the objection was sustained. In this we find no error. No foundation had been laid for the impeachment of Kingsley, and save for some such purpose as that of impeachment, nothing which may have been said by Kingsley after the consummation of the crime could by any possibility be competent evidence for the defense.

[10] A character witness having been called by the defense and having testified that he had known defendant for about two years, the following ensued: “Q. [By Mr. Shutt, defendant’s counsel] : I will ask you if you know what the general reputation of the defendant is for truth, honesty and integrity in the community in which he resides, and in his business relations? A. I don’t know about the community in which he resides. Q. But in his business relations? A. In his business relations, they are good, as far as I know. Mr. Jordan [the deputy district attorney] : I object to any further questions of him as a character witness. [Italics ours.] The Court: Objection sustained. Mr. Shutt: I believe we are entitled to.go into that, to show what his reputation is in the business world. The Court:

The court did not err in refusing to permit the witness to testify further as to defendant’s reputation. The trait involved in the offense charged against defendant is such that it was proper for him to show, if he could, that he bore a good reputation for honesty and integrity in the community in which he lived. And since the prosecution claimed that the alleged larceny was committed in the course of appellant’s business dealings, it doubtless would have been proper to ask the witness to tell, if he could, what appellant’s general reputation was in the community in which he lived for honesty and integrity in his business relations. But the question was not so framed. The witness, though disclaiming any knowledge of defendant’s general reputation for truth, honesty, and integrity in the community in which he resided, was permitted, nevertheless, to testify that, so far as he knew, defendant’s reputation in his business relations was good. What more could appellant ask? [11] While it is permissible for an accused, when a particular trait of character is in issue, to show his general reputation with' regard to such trait, in the community or communities in which he has lived, it is not permissible for him to show what his reputation for such trait is among the members of a particular class of people. (16 C. J., pp. 582, 583.) In State v. Brady, 71 N. J. L. 360 [ 59 Atl. 6 ]—a ease in which the defendant was charged with the carnal abuse of a young girl—it was held that a question which called for the defendant’s reputation “among his fellow-workmen” as to his chastity and morality was too narrow, the court saying: “The defendant was entitled to give evidence as to his reputation in the community in which he lived, for chastity and morality, but not his reputation among a selected number from such community.” “When the character of one is in issue it can be shown only by evidence of his general reputation as disclosed by the common speech of his neighbors and members of the community.” (Commonwealth v. Porter, 237 Mass. 1 [ 129 N. E. 298 ].) “In all cases where a defendant is allowed to prove his character for peace and quiet, it must be done by proving general reputation in the community or communities where he has lived.” (People v. Murphy, 146 Cal. 506 [ 80 Pac. 709 ].)

The judgment is affirmed.

Works, J., and Craig, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on May 9, 1925, and a petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 8, 1925;