People v. Knox

This is an appeal from a judgment of the court upon a verdict of the jury finding the defendant guilty of the crime of embezzlement. An information filed by the district attorney of Los Angeles County charged the defendant and appellant herein, Edgar J. Knox, with embezzlement in count one and grand larceny in count two. Appellant was acquitted on the charge of grand larceny, but was found guilty on the count of embezzlement.

In urging a reversal of the judgment the appellant admits that under the rule of “conflict of testimony” this court will not disturb the finding of the jury; but he contends that the testimony in the case is so strongly in his favor that the court in reviewing the points he raises should apply the doctrine of the “close case.”

We have carefully examined the transcript of the evidence and are moved to observe that if the complaining witness’ testimony was given full credit by the jury, as undoubtedly it was, it cannot be said that this is what may be termed a “close case.”

The complaining witness, Alice M. Bright, testified that in November, 1924, the defendant, with whom she had a limited acquaintance, approached her with the statement that he

One Thomas B. Leddy, an attorney at law, testified that Mrs. Bright, the complaining witness, had consulted him with regard to the money she had turned over to the defendant, and requested him to represent her in securing its return; that pursuant to this employment he took the matter up with the defendant, and in one interview with the defendant in the witness’ office, the defendant admitted that he had received $1,500 from Mrs. Bright for the purpose of purchasing some property, but that he had never purchased the property with the money.

The defendant, taking the stand in his own behalf, admitted that he had secured $1,500 in two checks from the complaining witness, but contended that it was money which he borrowed from her, and insisted that the note which he gave her was for the purpose of evidencing a loan which she had made to him. For the purpose of our discussion, it may

The fact that the defendant gave and the complaining witness accepted a note for $1,500 at the time the second check was given is pointed out by the appellant as a strong circumstance in support of his contention that the evidence in the case is very close. As further supporting the defendant’s story that the transaction was a loan, it is urged that after receiving the note the complaining witness endeavored to discount the note at a bank.

Manifestly, if the jury believed the defendant’s story, namely, that the transaction was a loan, there would have been no verdict of guilty, and all that is urged by the defendant here would be entitled to weight; but, unfortunately for the defendant’s position, the verdict necessarily presupposes that the jury did not believe his story, but accepted the story of the complaining witness. The jury may very well have construed the giving of the note by the defendant as a bit of sharp practice indulged in for the purpose of covering up any indication of criminal intent, and may likewise have interpreted the action of the complaining witness in accepting the note as due to her inexperience in business; for manifestly the record in the case clearly shows that the complaining witness was inexperienced, if not unfamiliar, with business transactions of this kind.

[1] The first point urged by appellant is that the court committed prejudicial error in overruling the objection of his counsel to certain questions asked by the district attorney of the defendant while on the stand, concerning the use which he had made of the $1,500 secured by him from the complaining witness. At the outset of his testimony while on the stand the defendant frankly admitted that he used this money for his own personal uses. Upon cross-examination, and over the objection of defendant’s counsel, the district attorney elicited from the defendant a statement or admission that he owed the Alexandria Hotel the sum of $600 for personal expenses, and had previously issued a check

We cannot agree with the appellant in this criticism. Once conceded that the inquiry was proper, the district attorney had a perfect right to elicit specific information instead of being satisfied with a general admission. (People v. Rowland, 12 Cal. App. 6 [ 106 Pac. 428 ]; Dimmick v. United States, 135 Fed. 257 [ 70 C. C. A. 141 ]; Bridges v. State, 103 Ga. 21 [ 29 S. E. 859 ].)

[2] The next point urged is that the evidence does not support the charge of embezzlement under the provisions of section 511 of the Penal Code of the State of California. The portion of the section which appellant contends is applicable to this case reads as follows: “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 in good faith, even though such claim is untenable. ...”

Appellant’s contention is based upon the theory that, inasmuch as he testified that the transaction wherein he secured the $1,500 from the complaining witness was a loan, or that he believed it was a loan, even though mistaken as to the legal effect of the transaction, such asserted circumstances bring him within the provisions of the section of the Penal Code above quoted. The question as to whether or not the defendant appropriated the money “openly and avowedly,

[3] Appellant urges also misconduct on the part of the district attorney as being prejudicial to his interests and of such a character as to justify a reversal of the judgment. It is contended that the district attorney’s questioning of the defendant while on the stand as to the specific use made by him of the money received from the complaining witness, resulted in the testimony that the defendant had used $600 of this money to take up a check he had issued to the Alexandria Hotel. It is urged that in pursuing this line of questioning, the defendant was forced to admit that he had committed some other crime. In discussing one of the previous points made by the appellant, we have indicated that we do not believe the record justifies such a deduction, and hence if the line of questioning was proper, as we have held, there could have been no misconduct on the part of the district attorney in asking the questions referred to.

[4] During a discussion between counsel and the court as to the relevancy of certain evidence which the district attorney was endeavoring to elicit from the defendant on cross-examination, the district attorney used the following language: “If I can establish he had no source of income at that time, that he was simply living by virtue of his wits, I think the jury has a right to know that.” Appellant’s counsel objected to the use of the clause “simply living by virtue of his wits,” and requested the court to instruct the jury to disregard the same. The use of this language and the failure of the court to give a specific instruction is assigned as prejudicial error. The phrase in question is subject to various interpretations; but assuming that it was intended by the district attorney and interpreted by the jury as meaning that the defendant was making his living by obtaining money improperly from other persons, this was the very crux of the case on trial, and in the argument upon any point raised as to the competency or relevancy of the evidence it

[5] Appellant also urges that error was committed by the court in refusing -to give to the jury certain instructions requested by the defendant. These instructions simply elaborated in some detail the general principle set forth in other instructions covering the subject of reasonable doubt and the duty of the jury in weighing and considering the evidence. Such amplification is not necessary, and failure to give the requested instruction is not error.

[6] The last point urged for a reversal arises out of three instructions given by the court, dealing with the subjects of grand larceny, obtaining money under false pretenses, and ¡embezzlement. These instructions give the definition of each of the crimes noted and lay down the rules to be applied by ,the jury in distinguishing between the several crimes. Counsel for appellant suggests that “the difference between the three offenses should have been clearly stated without confusion, ...” The instructions under criticism unquestionably state the law on the subjects involved. That some confusion may have arisen in the minds of the jurors in attempting to understand and apply the rules laid down in these instructions is quite possible. In fact, briefs filed in this court by eminent counsel would indicate that members of the bar frequently have difficulty in noting the demarcation between grand larceny, obtaining money under false pretenses and embezzlement, and that confusion in dealing with these subjects is not limited to the lay mind. In the instant ease a careful examination of the evidence leads us to suggest that the jury showed unusual discernment .in applying the rules laid down by the court’s instructions in arriving at- its verdict, for each essential element in the crime of embezzlement has abundant evidence in the record to support it.

Conrey, P. J., and Curtis, J., concurred.

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 December 28, 1925.

Myers, C. J., and Lennon, J., dissented.