120 Cal. 691 | Cal. | 1898
Appellant makes hut one point in support of his appeal—that the evidence did not warrant his conviction of grand larceny, but established, if anything, embezzlement instead.
At the time the money was taken it was in two trunks belonging to defendant, five hundred dollars being in one and three hundred dollars in the other, where it had been placed by Paillac, to whom it belonged, some time before, for safekeeping, under these circumstances: Paillac and the defendant were fellow countrymen and intimate friends, and roomed together at the same house; they had two rooms, one upstairs and the other down, but their intimacy was such that they used them in common, sleeping together in the lower room, and keeping wearing apparel and other articles in the upper one—each having like access to both, and indifferently carrying the keys; they had been thus situated for several years; Paillac, who had accumulated several hundred dollars, had been in the habit of keeping it buried in the ground in a secret hoard; observing that the defendant kept his money in his trunk, a discussion arose between them as to the safest way to keep money; which one of the two first suggested the idea of placing Paillae’s money in the defendant’s trunks does not clearly
The result of the conversation was that Paillac dug up his treasure and placed it in defendant’s trunk. This was something over two years prior to the taking. At that time Paillac had some five hundred dollars, and he put that amount in a purse, securely tied up in a handkerchief, and handed it to defendant, who in Paillac’s presence placed it in the trunk in the upper room, where it remained undisturbed, except when inspected by Paillac, until taken by defendant. Subsequently to this first deposit the three hundred dollar fund was accumulated by Paillac. This latter was the fund to which Paillac resorted for current needs from time to time—the five hundred dollars being kept intact— and it was kept in the trunk which stood in their sleeping-room downstairs. Like the first it was always kept in a package securely done up by Paillac himself, and which he would merely hand to the defendant to be placed in the trunk in his presence; the defendant, as the evidence clearly indicates, never being given the right to handle or disturb either package in any way, except in the presence of Paillac, and then only for the purpose of handing them out when wanted by the latter, or replacing them at his direction. And, while defendant carried the keys to the trunks, they were always at the call of Paillac whenever he wished to get at his money; the defendant on such occasions unlocking the trunks for the purpose and handing out the money, or putting it back, as the case might be; and the evidence indicates that while Paillac had confidence in his friend, it did not
Upon this evidence and some expressions in the testimony of Paillac that, because of his confidence in the defendant, he “intrusted” the money to him to keep for him; that he would not have done so but for his “confidence” in him; and that he would have looked to him to return the money had it been missing, the defendant makes a very strenuous and plausible argument that the facts show a delivery of the money to the defendant which constituted a deposit or bailment; and that in appropriating the money under- such circumstances the defendant was guilty of a fraudulent appropriation or embezzlement, and not larceny.
But we cannot accede to this view. Taking the whole evidence together, with all it tends to show, and we are satisfied that it does not establish a bailment or intrusting of the money to defendant. As we regard it, the evidence does not show that Paillac ever in fact really parted with the possession of his money. While it was locked in the trunks of defendant, to which the latter retained the keys, the trunks were at all times as much in the possession of Paillac, and with practically the same freedom of access to the latter, as in that of the defendant. In legal contemplation the use of the trunks was loaned or given to Pail-lac as a place for keeping his money. The mere fact that defendant carried the keys is not a material consideration. As we have seen, the keys were always forthcoming when demanded by Paillac for access to his money; and the money was, therefore, to all practical intents and purposes, as much under his personal supervision and protection as of defendant. Indeed, more so, since the latter had no right or authority to tamper with it in any way, except as directed by its owner.
Much is made by defendant of the fact that Paillac testified that he “intrusted” the money to defendant; and it is urged that this constitutes embezzlement because that offense consists of “the fraudulent appropriation of property by a person to whom it has been intrusted.” (Pen. Code, sec. 503.) But to reach the meaning of the witness, his expressions must be read in the light of his whole testimony and all the circumstances; and when so read it is clear that his money was not intrusted to the keep-
■Moreover, there is, as suggested by. the attorney general, another aspect in which the evidence, if so construed by the jury, was sufficient to warrant a conviction of larceny. If the jury believed, as there was evidence tending to show, that the defendant originally induced Paillac to place the money in his trunks for the purpose of getting it into his possession and control, with the intent to thereafter feloniously appropriate it, such act of appropriation when accomplished constituted larceny. (People v. Rae, 66 Cal. 423; 56 Am. Rep. 102.)
We are satisfied that the judgment should be affirmed.
It is so ordered.
Garoutte, J., and Harrison, J., concurred.