283 P. 378 | Cal. Ct. App. | 1929
The state appeals from a judgment of dismissal entered after defendant's demurrer was allowed to a second amended information.
On June 15, 1928, an information was filed charging the defendant with the crime of obtaining $3,000 by false pretenses. This information alleged that on or about the eighth day of July, 1925, the defendant made certain representations *551
to Max L. Rosenfeld as to his ownership of stocks and contracts, some of which were alleged to have been false, and that relying upon said representations the said Rosenfeld delivered to the defendant the sum of $3,000. A demurrer to this information was sustained upon the authority of People v. Canfield,
Leave to amend having been granted, the district attorney on August 11, 1928, filed an amended information framed in two counts, the first charging grand theft of the sum of $15,000, in the language of section
Such being the case, all questions relating to the sufficiency of the original and first amended informations and the question of the application of the statute of limitations may be disregarded because if the second amended information attempts to charge an offense not shown by the evidence taken at the preliminary examination it should not have been filed. [1] This follows from the express provisions of section
[2] Inasmuch as the trial court has jurisdiction to enter a judgment of dismissal, it is incumbent upon the state on this appeal to show that that judgment was error which has resulted in a miscarriage of justice. Thus, again, assuming that the appeal was properly taken from the final judgment of dismissal, that judgment must be affirmed unless the appellant is able to show that some error has crept into the judgment which has resulted in a miscarriage of justice.
[3] The rights of the defendant in a case of this kind are statutory. Section 8 of article I of the Constitution provides that offenses "shall be prosecuted by information, after examination and commitment by a magistrate or by indictment. . . ." Section
[4] The case presented here on the part of the respondent is that the second amended information states a charge not disclosed by the evidence in that it purports to charge that the defendant procured a loan of $15,000 from Rosenfeld through false representations as to his assets and false promises that they were sufficient to insure the repayment of the loan at its maturity, and that said loan would be repaid at maturity out of such assets. Now the undisputed and conceded facts as developed at the preliminary examination are that no such transaction occurred at all, but on the other hand the admitted facts are that Rosenfeld and defendant were lifelong friends who had been associated in numerous business transactions and that for some time prior to July, 1925, defendant had frequently informed Rosenfeld of his financial difficulties and that he had suggested to Rosenfeld the organization of a new corporation for the purpose of carrying on the business of selling lumber on commission. The defendant informed Rosenfeld that $15,000 would be needed for this purpose; that the defendant was obligated to such an extent that $7,500 would have to be used immediately for the payment of outstanding indebtedness, and that the remaining $7,500 would be needed to finance any accounts which would have to be carried while the business was being started. Numerous letters were exchanged between the parties, all showing unmistakably that Rosenfeld knew the financial condition of the defendant, and notwithstanding such condition he planned to go into business with him. The arrangements for the loan were evidenced by the written offer and acceptance dated July 7, 1925, which reads as follows: *554
"San Francisco, July 7, 1925, Tuesday.
"Mr. Max Rosenfeld, "San Francisco, California.
"Dear Sir: In consideration of your advancing $15,000, of which $7,500 is to be retained in the company and $7,500 paid out on old accounts which we wish to pay, it is understood that the writer will give you his one-day note, at six per cent up to $15,000, or whatever amount is advanced, and insurance policies up to $20,000. We will incorporate a company in which you will have one-third of the stock and the writer will have two-thirds of the stock, but he will put his two-thirds of the stock up as collateral security on the above note. It is understood that you are to draw $300 monthly salary as an official and the writer is to draw $600 monthly salary as an official, and that we are to keep the overhead expense as low as possible. All dividends on all stock up to $15,000 to be applied to liquidate the above mentioned note and interest before any other dividends are paid out, and meanwhile the writer will keep up the premiums personally on the insurance in your favor. Neither party is to dispose of his stock without the consent of the other, and this agreement to be binding on their heirs for six years from date. In the event of any difference of opinion, same to be left to Mr. Henry Rosenfeld to settle, and his decision to be final.
"Yours very truly, "JOSEPH F. FYFE, Jr. "J.F.S.
"Accepted: MAX ROSENFELD."
In explanation of the writing, testimony was given by the complaining witness Max Rosenfeld and by Henry Rosenfeld, his brother, showing that the insurance policies mentioned in the writing and the defendant's share of the stock in the company to be incorporated were the only collateral ever suggested or contemplated as security for the loan. The evidence indisputably shows that the defendant did not at any time suggest or offer to put up any of his other assets as security for the loan, but on the other hand there is not so much as a conflict in the evidence that the complaining witness entered into this business agreement with the defendant fully informed as to the conditions and with the expectation *555 of repayment out of the profits of the corporation which was to be formed.
In face of this uncontradicted evidence it is inconceivable that a district attorney should allege that the defendant represented and promised "all of said shares of stock and contracts and the values thereof and the said indebtedness to him, the said Joseph Fyfe, Jr., was and were and would be security to said Max L. Rosenfeld for the repayment of said loan at its maturity; that each and all of the said shares of stock and said contracts and agreements and the said indebtedness to him the said Joseph Fyfe, Jr., were then and there such that the said loan of fifteen thousand dollars ($15,000) might and couldbe repaid therefrom by him, the said Joseph Fyfe, Jr., to said Max L. Rosenfeld, at the maturity of said loan, and said Joseph Fyfe, Jr., did then and there request of said Max L. Rosenfeld a loan in the sum of fifteen thousand dollars ($15,000) upon thesecurity aforesaid." The vice of the pleading is particularly patent from the fact that the maturity of the loan was evidenced by a one-day note whereby the written contract of the parties provided for the future payments out of the profits of the corporation to be formed.
The procedure followed in this case is concrete evidence of the purpose and wisdom of the provisions of section
[5] There is some argument in the briefs to the point that because of recent amendments to sections
Judgment affirmed.
Sturtevant, J., and Koford, P.J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on December 31, 1929, 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 January 13, 1930.
*557All the Justices concurred.