People v. Woollacott

Count I of the indictment charged that the defendant embezzled $9,844.88, in money, personal property of S. N. Bonsall.

In count Y of the indictment the defendant was charged with having embezzled $3,850, in money, belonging to one S. C. McClung.

[1] The first point made on behalf of appellant is that the court erred in not giving defendant’s instruction. number two. The refusal,to give this instruction was not error. The request was that the court instruct the jury that mere neglect to pay over money, or to hand over security or property, is not sufficient evidence in itself of fraudulent conversion thereof to one’s own use, “for there may be losses and failure to pay where a failure is due to misfortune or from other causes not criminal.” There was no evidence on which this instruction could have been predi

[3] Appellant’s second point pertains to the refusal of a requested instruction as to the character of the transactions between appellant and McClung, and is based upon the unlawfulness of the transaction under the provisions of article IV, section 26, of our state constitution. Whatever our opinion may be as to the merit of this proposed instruction, we hold that it is the settled law of this state that although the money may have been given and received to accomplish an unlawful purpose the embezzlement of it by the receiver is criminal. (People v. Ward, 134 Cal. 310 [ 66 Pac. 372 ]; People v. Martin, 102 Cal. 558 [ 36 Pac. 952 ].)

[4] Appellant’s third point is that the court erred in refusing to give appellant’s instruction number six. This requested instruction is based upon the appellant’s contention that the transaction between appellant and McClung was unlawful. The instruction was correctly refused on the doctrine announced in People v. Ward, supra.

[5] Appellant’s fourth point is that the court erred in admitting exhibit number 22 in evidence. This was a document taken from the files of Hutton & Company showing all transactions in grain had by appellant with that company. It had been proven that the ledger from which the exhibit was taken was kept in the custody of the witness verifying it, and constituted that company’s record of all grain transactions with all its customers, and was made under that witness’ supervision, and that the entries were otherwise sufficiently verified. The ledger itself was present

In reply to the brief filed in behalf of the state, a reply brief was filed in which other points in support of appellant’s appeal were made. All the material points made in the reply brief had been made in the opening brief in a more condensed form. [7] One of the additional points made was that there was no embezzlement by appellant, because the moneys alleged to have been embezzled by appellant were not entrusted to him, but to A. H. Woollacott Company, a corporation. But the evidence shows that the complaining witnesses de.alt entirely with appellant in the transactions and that he controlled and handled the moneys they transferred to him, in the same manner as though A. H. Woollacott Company had had nothing to do with it. He was the person entrusted, and the only person who appeared to have anything to do with obtaining the moneys or disposing of them. We therefore hold that the embezzlement proven in this case was committed by defendant personally, and that- he is as responsible for it as he would have been if A.

[8] Appellant contends that the indictment was not direct and certain in that it charges two distinct and separate offenses not in any manner connected or arising out of the same transaction, and brought by two complaining witnesses and each requiring two different lines of evidence and witnesses to support the same. In appellant’s reply brief only has this point been raised. But section 954 of the Penal Code provides that the indictment or information may charge two or more different offenses of the same class of crimes or offenses under separate counts. The court, under that section, could have ordered the two counts of the indictment tried separately, but was not required to do so, and it is now too late to complain that such order was not made.

As to count I of the indictment, it appears from the evidence that on August 8, 1924, Bonsall gave appellant a check for $10,000 with instructions to immediately deposit the whole of said sum with E. P. Hutton & Company, in the name of A. H. Woollacott Company, for the purpose of opening up a special grain account and to secure any trades that Bonsall might make from time to time. Appellant was to buy and sell grain for Bonsall through this account, subject to the authorization of Bonsall. Thereafter, on October 8, 1924, Bonsall gave appellant a check in the sum of $2,000 to be deposited with E. F. Hutton & Company in order to strengthen his grain account, and again on October 10, 1924, he gave appellant another check in the sum of $1,500 for the same purpose. Between August 8th and December 10th Bonsall instructed appellant to make fifteen or twenty trades for him through E. F. Hutton & Company, and on or about the 12th of November Bonsall informed appellant that he, Bonsall, had

After Bonsall made an investigation and reported to appellant that there was no money at that bank, in any such account, Bonsall states that appellant told him that he had used the money. Bonsall made several trips to the office of appellant to receive the money, but it was never at any time paid to him. On each of these occasions appellant would request him to come back again. With the exception of a few dollars over $300, Bonsall never received any part of the $13,500 which he turned over to appellant. On November 30th appellant, in writing, admitted a credit to the account of Bonsall in the sum alleged to have been embezzled in count I of the indictment.

Deputy District Attorney Ryan, in his evidence, testified that when he asked appellant whether he owed Bonsall this money, that the appellant stated to him that he did owe it, but that he did not have it to return, that he had spent it in gambling in Tia Juana.

The original record of B. F. Hutton & Company, admitted in evidence after being identified by the employee of said company who made the same, showed that no more than $4,500 had been deposited by appellant. Receipts also were filed as exhibits herein, and after having been identified by the assistant cashier of B. F. Hutton & Company, after the statement that they were in his handwriting. These receipts were issued in the regular course of business and were part of the permanent records of B. F-. Hutton & Company. In each instance where records of A.

The original ledger sheets of appellant’s account with the Heilman Bank were identified by the head bookkeeper for the bank and received in evidence. They show that* on August 8, 1924, appellant deposited $10,000; on October 8, 1924, $2,000; on October 10, 1924, $1,500; these being the dates that Bonsall gave appellant checks for the sums of money identical with the amounts deposited.

It would make no difference that these amounts were deposited with appellant for the purpose of entering into an illegal transaction, or a strictly legal one; or whether it was for the purchase of grain on a margin; or whether it was for the purpose of buying or selling grain short; or whether it was buying stocks or grain on installments, for the money was still the money of Bonsall until it was expended as he directed. It has been held in People v. Ward, 134 Cal. 301 , at page 309 [ 66 Pac. 372 , 375]: “It is also contended by appellant that as the authority given by the Union for the withdrawal of the money from the bank was for the fraudulent purpose of hindering and delaying its creditors, a conversion of it by the. defendant did not constitute embezzlement, and that the ■ court erred in not instructing the jury to that effect, as requested. The instruction was properly refused. The Union, by authorizing the withdrawal of the deposit, did not part with its ownership of the money, nor pretend or attempt to do so. As between it and its agent, to whom the money was entrusted, there can be no question as to its ownership. In Commonwealth v. Cooper, 130 Mass. 285 , it was held to be no defense to an indictment for the embezzlement of the money, that it was entrusted to the defendant for an illegal purpose. (See, also, Commonwealth v. Smith, 129 Mass. 111 ; State v. Shadd, 80 Mo. 358 ; State v. May, 20 Iowa, 305 ; State v. Tumey, 81 Ind. 559 ; People v. Martin, 102 Cal. 558 [ 36 Pac. 952 ].” (See, also, People v. Edwards, 72 Cal, App. 121 , 122 [ 236 Pac. 944 ].) One of the principal

The evidence in this case clearly discloses the fact that the appellant and A. H. Woollacott Company were substantially one and the same; that that was the name under which he was transacting business, using sometimes his own name and sometimes using the name of A. H. Woollacott Company without making any distinction between his own individual name and that of the corporation.

The same reasoning would apply to each of the objections made by the appellant to the introduction of evidence and the refusal of instructions as to count Y of the indictment, excepting the conversation had with Ryan and Bonsall. Prom the conversation had between appellant and MeClung, in reference to the money referred to in the fifth count of the indictment, it appears from the evidence that about April 1, 1925, appellant confessed to MeClung that he had not bought the stocks in question, but instead had lost MeClung’s money in personal and unauthorized speculations. And again, in the first part of May, 1926, McClung and appellant discussed the dealings and appellant stated that he had been involved in similar trouble in 1920 and 1921 and did not wish to have MeClung make htm any further trouble now. Appellant stated to MeClung at that time that he, MeClung, had been very lenient with him up to that time and that he appreciated it as he realized that he could have put him in jail at any time that he wanted to. MeClung, however, in spite of the promises of appellant to reimburse him, never received any part or portion of the $3,850, which he acknowledged was due to MeClung as representing the amount due from appellant to MeClung on March 18, 1925. At the time that appellant admitted that he owed the sum of $3,850 to MeClung, he represented to MeClung that the stocks which had been attached, and which were referred to in the written acknowledgment— acknowledging the sum of $3,850 to be due—were all intact, and that it was only by reason of the attachment which he said had been levied that he was unable to make delivery of them. Later, however, on April 1, 1925, appellant confessed to MeClung that he had not bought the stocks in

Therefore, it appears to ns that the evidence was sufficient to support the verdict, and there are no errors of law justifying a reversal.

Judgment and order affirmed.

Conrey, P. J., and Houser, 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 February 10, 1927.