People v. Torp

Defendant was indicted and subsequently convicted of grand theft, and from the judgment of conviction and order denying a new trial this appeal is prosecuted.

In the first count of the indictment it is alleged:

“ . . . Casper N. Torp was entrusted by Dorothy St. Louis Austin and W. G. Austin, her husband, with the sum of Four Thousand Five Hundred Dollars ($4500.00) . . . for the express purpose of paying the said sum of Four Thousand Five Hundred Dollars ($4500.00) ... to Emilie H. Game; that the said Casper N. Torp did not pay said sum ... or any part thereof, to the said Emilie H. Game, but . . . did wilfully, . . . and in violation of his trust, appropriate said sum ... to his own use.”

The second count is like the first count except it alleges a different amount and different dates.

The evidence discloses that Mary Costa was the owner of a tract of land which was subject to a mortgage for $7,400 held by Mr. and Mrs. Game. In January, 1937, Mr. and Mrs. Austin desired to purchase this land and called upon Torp, an attorney at law of Areata, who had in his possession all the papers necessary to a satisfaction of the deal and was familiar with all the facts concerning this property. In April, 1937, it was agreed that the Austins would buy the property for $7,600, which would pay off the Game mortgage and leave a small balance for the owner. All the negotiations took place in the office of Torp, and when the arrangements had been finally agreed upon the Austins gave to Torp $50 in cash and four checks totaling $7,550, drawn upon their account. At the time of the delivery of these four checks Torp gave to Mrs. Austin a deed of the property from Mrs. Costa, the owner, and a satisfaction of the mortgage from Mr. and Mrs. Gaine.

Two points are urged by appellant upon this appeal,— first, that the indictment is insufficient in that it does not allege to whom the fiduciary" relationship was owing, and secondly, that the court erred in certain rulings upon admissibility of evidence and in its instructions to the jury.

It is the contention of appellant raised by demurrer, motion to set aside the indictment, and to strike, and in arrest of judgment and on motion for a new trial, that the indictment in merely charging that appellant was “entrusted” by Dorothy St. Louis and W. G. Austin with certain moneys to be paid over to Emilie H. Game failed to state a public offense and was wholly insufficient in that there was no allegation of fact as to the capacity in which appellant received the money, or to whom the money belonged, or to whom he owed any duty.

Appellant cites several cases as authority for the position that the existence of a fiduciary relationship must be pleaded and proved: People v. Steffner, 67 Cal. App. 23 [ 227 Pac. 699 ] ; People v. Riccardi, 50 Cal. App. 427 [ 195 Pac. 448 ] ; People v. Kirwin, 87 Cal. App. 783 [ 262 Pac. 803 ].

A careful examination of the cases does not support the claim of appellant, at least to the extent he claims.

In People v. Steffner, supra, the allegations of the information were that defendant was “entrusted” by the complaining witness with a specified sum and “then and there received the said . . . money in trust as aforesaid and while so entrusted

In People v. Kinuin, supra, it is held that an information charging defendant was the agent and bailee is sufficient without showing the character and purpose of the bailment.

The several cases cited by appellant were decided prior to the consolidation of the crimes of larceny, embezzlement and obtaining money under false pretenses, under the charge of grand theft as defined in section 484 of the Penal Code (1927). While of course these crimes still retain their specific elements as far as proof is concerned, they may, under sections 484 and 952 of the Penal Code be now set forth “in the words of the enactment ... or in any words sufficient to give the accused notice of the offense of which he is accused”.

In People v. Hill, 2 Cal. App. (2d) 141 [ 37 Pac. (2d) 489 ], it was held that under that method of pleading, embezzlement is charged as grand theft.

The indictment clearly charged that defendant was entrusted by Dorothy St. Louis Austin and W. G. Austin, her husband, with specific sums of money for the express purpose of paying these sums to Emilie

Appellant also claims there is no evidence that the money was entrusted to him for any specific purpose. The indictment alleges the money was entrusted to Torp for an express purpose, and the record discloses that it was paid over by the Austins to pay off a mortgage; that appellant, as an attorney, was conversant with the status of the property and had in his possession the papers to clear the title and make the transfer of ownership from Mrs. Costa to Austin and to pay off the Game mortgage, and he received the money for that purpose. He gave the Austins a deed to the property and a satisfaction of mortgage, but failed to pay off the mortgage and to clear the title. Not only is the testimony of the Austins and the Gaines clear as to all the facts, but a letter in evidence from Torp bears out all they claim as follows:

“April 19, 1937

“Mr. C. F. Game,

“5457 Broadway

“Oakland, California.

"Dear Mr. Game:

‘ ‘ The transaction for the sale of a portion of the Costa property has been closed, but the title Company encountered more difficulty than was expected relative to the title, and they have instructed that proceedings be taken under the so-called ‘Twenty-year Act’ to quiet the title to the property. This procedure will take about ten weeks. The papers have all been executed and the buyers have placed $7500.00 with me in escrow to be paid to you as soon as the title is cleared.

‘ ‘ Trusting the matter will go through according to schedule, and that you will let me know if you desire any further information relative to the matter, I am,

“Tours very truly,

“Casper N. Torp.”

As to criticism directed toward certain instructions, it is the theory of appellant, apparently, that it was necessary to establish the actual legal title to the money paid by the Austins to Torp. That was unnecessary. It is sufficient if the money was given to appellant by Austin, and the evidence shows it was not a gift or a loan but was a trust fund for a specific purpose. Whether the legal title to the money was

Also appellant claims the court erred in limiting his cross-examination of Mr. Game. That examination was likewise to show to whom the money belonged, and whether or not appellant was entitled to an offset for previous transactions. Those were matters not pertinent in this criminal action. The money, not the property of appellant, was paid over to him to satisfy a mortgage; it was not so applied.

We find no errors, and the judgment and order are affirmed.

Thompson, J., concurred.