People v. Indrieri

The defendant was convicted on a charge of embezzlement. He made a motion for a new trial, the motion was denied, and he has appealed from the judgment of conviction and the order denying him a new trial.

On the twenty-eighth day of January, 1925, and for some time prior thereto, Mr. J. O. Traber was an attorney at law located at Fresno and engaged in the practice of the law at that place. The defendant was not an attorney at law admitted to practice in the courts of record of the state of .California, but he had offices with Mr. Traber. As stated in testimony by the defendant he was not a law partner of Mr. Traber, but he was a business partner. Mrs. Markese, a daughter of Mr. and Mrs. Zero, was one of the clerks in the office. The defendant is an Italian, but speaks the English language, as shown by his testimony contained in the transcript. Some time prior to the twenty-eighth day of January, 1925, an action was commenced in the superior court of Fresno County entitled Louis F. Ryan v. Jack Zero and Lucy Zero, Ms wife. It was a suit in equity brought by the plaintiff to obtain a decree declaring terminated a certain contract for the purchase and sale of real property. Among other things it was alleged in the complaint that the purchaser had made default in the payment of an installment of $300 which had become due and payable under the terms of

[1] The appellant contends that the evidence was wholly insufficient to show that appellant appropriated to his own use any of the money deposited with him by the Zeros. In that connection the appellant contends that the record does not show facts constituting an actual misappropriation and that it does not show a constructive misappropriation because there is no evidence of a demand made on the defendant by anybody unless by Mr. Traber and that the conversation delineated by Mr. Traber did not constitute a demand, furthermore the defendant was the authorized custodian of the funds and Mr. Traber was not, nor was Mr. Traber the attorney, and, consequently, he was not authorized to make the demand. Conceding that there is some evidence in the record which would support the appellant in making these respective contentions, nevertheless, if the jury believed the evidence which we have recited the jury was entitled to bring in a verdict against the appellant. [2] If, as claimed by the appellant, the defendant was the custodian of the funds, the acts done and performed by the defendant thereafter in taking the money out of the state would support the conclusion of the jury that such act on the part of the defendant was an embezzlement. (People v. Fisher, 16 Cal. App. 271 , 275 [ 116 Pac. 688 ].) [3] Moreover, there was some evidence in the record to the effect that Mr. Traber was the attorney and that the defendant was merely an associate in business with Mr. Traber. Under this theory of the evidence Mr. Traber was entitled to make a demand and the conversation delineated by him was such that the

[4] The second point made by the appellant is that certain evidence was received erroneously over the objection and exception of the appellant. During the presentation of the case for the prosecution. Mrs. Zero, Mr. Zero, and the county clerk were each asked if the money had been paid; each replied that it had not been. The question as addressed to each witness was general and did not in terms relate to what had been done after the arrest of the defendant. The objection interposed was general. The defense made no application to have the testimony limited to the time transpiring between the date that the defendant received the money and the date of his arrest. No objection was made on the ground that the question was too broad or that it extended to any facts that had occurred since the date of the arrest. There is nothing to show that the jury understood fhe testimony as being addressed to a time subsequent to the arrest of the defendant. Even though the jury did so understand it, we think the point was waived. Later, after the prosecution had closed its case, the defendant took the stand. One of the first questions addressed to him by his attorney was, “Q. In the action of Ryan v. Zero, have you ever deposited that money in court? A. I did not.”

[5] In instructing the jury the trial court read section 512 of the Penal Code. The appellant now claims that in so doing the trial court committed error, as the reading had the effect of instructing them concerning matters of fact, contrary to the constitutional inhibition. This contention is not clear. On the contrary, the instruction was a part of the law of this state and did not purport to state facts and no error was committed by reading it to the jury. [6] The appellant asked an instruction to which the trial court added the language which we have italicized and then gave it to the jury: “You are instructed that if no proof has been introduced of a demand having been made upon the defendant by Mr. Jack Zero, or his wife, or anyone acting under their authority, for the return of the $300 then you will acquit the defendant.” There was no error in altering the instruction. After it was altered the instruction was more favorable to the appellant

The judgment and order are affirmed.

Langdon, P. J., and Nourse, J., concurred.