208 P. 340 | Cal. Ct. App. | 1922
In an indictment containing four counts defendant was charged, in the first count, with the larceny of three thousand dollars, the property of O. M. Justice; in the second, with the embezzlement of the same three thousand dollars; in the third, with the larceny of four thousand five hundred dollars, the property of S. Levin; and in the fourth, with the embezzlement of the same four thousand five hundred dollars. He was acquitted of the embezzlement charges and was convicted of the two larceny charges. A separate judgment was entered upon each conviction. From those judgments and an order denying his motion for a new trial he now appeals. [1] He also appeals from an order denying his motion in arrest of judgment, but as that order is not appealable, the appeal therefrom must be dismissed.
It was the theory of the prosecution that though defendant obtained possession of the moneys with the consent of the owners, their consent was obtained through deceit practiced by defendant, and that therefore the larceny was perpetrated by means of fraud and trickery. The case as disclosed by the witnesses for the people is, briefly, as follows: Defendant, posing as a Polish count who had but recently arrived in Los Angeles from the republic of Mexico, represented to the complaining witnesses, Levin and Justice, both of whom were physicians practicing their profession in the city of Los Angeles, that he had some friends in Mexico who held a lease on a parcel of valuable oil property at Huntington Beach; that his Mexican friends wanted to dispose of their lease; that it could be obtained through a Mexican who lived upon the land and who would execute the necessary documents; that defendant's friends in Mexico wanted him to sell the lease for them; that it could be purchased for seven thousand five hundred dollars, but that if the complaining witnesses wished to buy it they must act quickly. It finally was agreed that Dr. Levin would contribute four thousand five hundred dollars toward the purchase of the lease and that Dr. Justice, the other complaining witness, would contribute the balance of the purchase price — three thousand dollars. Defendant told Doctors Levin and Justice that they ought to give him the seven thousand five hundred dollars in cash, to be paid by him to his Mexican friends, as money would impress the *260 Mexicans and there were many persons trying to buy the lease. It was agreed that the purchase money would be given to defendant as the agent of the prosecuting witnesses and also as the representative of defendant's Mexican friends. As the result of many conversations, extending over a period of several days, defendant and the two doctors met, on the evening of November 15, 1920, at Dr. Levin's office in Los Angeles, where, after some preliminary conversation, Dr. Justice took from his pocket and handed to defendant three thousand dollars in currency, and Dr. Levin took from his safe and delivered to defendant four thousand five hundred dollars in currency. Defendant put the two amounts in his inside coat pocket and agreed with his two unsuspecting victims that he would procure the lease, signed by the Mexican who lived upon the property, that he would conduct the Mexican and his wife to a bank at Huntington Beach, that he would deposit the money in that bank, taking a receipt therefor, and that the money should remain in escrow with the bank until such time as the title could be examined by an abstract company. Shortly after the moneys were intrusted to him, defendant fled the state. He later was arrested and brought back. There are many other circumstances which need not be related tending to show that defendant was not acting in good faith. Needless to say, the gullible victims of the pseudo count's winning ways have seen neither the lease nor the money which they so guilelessly intrusted to their magnetic friend.
Appellant contends: (1) That the state courts, for reasons presently to be stated, are without jurisdiction of his person; (2) that the evidence is insufficient to justify the verdict; (3) that if any offense was committed it was embezzlement, not larceny; (4) that if the crime of larceny was committed there was but one larcenous taking, not two, and that, therefore, there should have been but one verdict of guilty and but one judgment of conviction; (5) that defendant's right of cross-examination was unduly curtailed.
The facts upon which appellant bases his contention that the court was without jurisdiction to try him are as follows: He was arraigned in the superior court for Los Angeles County on December 6, 1920. His trial in that *261 court was commenced on April 7, 1921, and continued until April 13, 1921, on which date he was convicted on the larceny charges. He is a citizen of Poland, and, prior to his trial in the state court, had been indicted by the federal grand jury, charged with entering the United States from the republic of Mexico without having a duly viséed passport. (See Ex parteSichofsky, 273 Fed. 694.) To that charge he entered a plea of guilty in the United States district court for the southern district of California, and on March 22, 1921, was sentenced by that court to confinement in the federal penitentiary at McNeil's Island for the term of three years. The United States district court then made an order staying execution of its sentence for a period of fifteen days and directing the United States marshal to take Sichofsky to the courtroom of the superior court for Los Angeles County at such times as his presence in the case there pending against him should be required, and to keep him in custody for the purposes stated in the order. Pursuant to that order appellant was taken by the United States marshal to the superior court for Los Angeles County, and was there tried, convicted, and sentenced.
[2] There is no merit in the claim that the court a quo did not acquire jurisdiction of appellant's person. It probably is true, as appellant contends, that after the sentence by the federal court and until the end of his term and discharge, no state court could assume control over his body without the consent of the United States (Ponzi v. Fessenden,
The evidence was amply sufficient to sustain the verdict. The testimony indicates that, from the beginning, appellant had undertaken to obtain the money from Levin and Justice ostensibly to use in paying for the purchase of the lease, but really to convert all of it to his own use. The theory of the prosecution that appellant, by trickery and deceit, fraudulently caused the prosecuting witnesses to believe that they were parting with the possession of their moneys for a valuable oil lease, to be purchased with the moneys which they credulously intrusted to appellant, is fully sustained by the evidence, which shows a bald scheme to deceive two unsuspecting physicians by drawing them into the snare set for them.
[3] That the evidence shows this to be a case not of larceny but of embezzlement is the next point made by appellant. The circumstances all show that neither of the complaining witnesses intended to part with the ownership of the money at the time when it was delivered to appellant. At the time when the money was delivered each complaining witness intended that appellant should receive it for him, and that it should be carried by appellant to the bank at Huntington Beach and there be deposited in escrow until such time as the abstract company should certify to the title to the lease, when, if the title should be found to be in appellant's supposed Mexican friends, it was to be paid to the latter as the purchase price of the lease. Had all this been done as intended, the moneys delivered to appellant would have remained in law the properties of the complaining witnesses, respectively, until final delivery to the supposed owners of the lease. It follows, therefore, that it was the intention of each complaining witness that the title to the money delivered by him to appellant should remain in such complaining witness, and that, *263
as a consequence, it was subject to larceny as his property, and that the crime could not be that of obtaining money by false pretenses. (People v. Tomlinson,
It next is contended that if appellant was guilty of larceny there was but one larcenous taking, notwithstanding three thousand dollars was received by defendant from one complaining witness and four thousand five hundred dollars from the other.[6] The rule generally adopted is that *264
where several articles are stolen at the same time and from one place, the offense may be charged as one crime and in a single count, even though the ownership is in different persons. [7]
Whether in such cases the person stealing the property of different owners at the same time and place may be prosecuted and punished as for separate and distinct offenses is a question upon which the authorities are in conflict. The author of the note to Hughes v. Commonwealth, 31 L. R. A. (N. S.) 723, says that the weight of authority holds that the person stealing from different owners at the same time may be punished for separate and distinct offenses. However, we do not find it necessary to pass upon this question. So far as our researches have gone, the cases wherein it has been held that there is but one larcenous taking and but one crime where several articles belonging to different owners are stolen at the same time and place, are all cases where the thief took the articles without the owner's consent. The reason for the rule that there is but one crime where articles belonging to different owners are stolen at the same time and place is that in such cases there is but one act of taking; and if the caption constitutes but a single act, there is but one offense. (17 R. C. L., p. 54.) Where articles stolen from different owners are located at different places, as, for example, where they are located in different rooms of the same house, each asportation with intent to steal constitutes a different offense, although the thefts may all have been committed in rapid succession and in pursuance of a formed design to steal. (State v. Maggard, 160 Mo. 469 [83 Am. St. Rep. 484, 61 S.W. 184]; State v. Emery,
There is no merit in appellant's claim that he was unduly restricted in his cross-examination of the people's witnesses. His examination of these witnesses proceeded at great length. It covers a very great number of pages of the *266 record on this appeal. Much of it is trivial and frivolous. In the exercise of that discretion with which it is vested, the trial court very properly sought to confine the examination to such questions as would tend, in at least some degree, to throw light upon the matters under investigation and to see that the trial was not needlessly prolonged by useless cross-examination. Though not always successful in these efforts, its laudable endeavor to avoid a useless prolongation of the trial by sustaining objections to questions that could have adduced naught but frivolous trivialities was not an abuse of sound discretion. [8] While the right of cross-examination, where it is being used in good faith for the purpose of eliciting the truth from a reluctant, evasive, or interested witness, should be allowed with great liberality, the court may always restrain the examination whenever it becomes apparent that time is being needlessly consumed by a tedious or frivolous questioning of the witnesses.
The appeal from the order denying the motion in arrest of judgment is dismissed. The judgments and the order denying a new trial are affirmed.
Works, J., and Craig, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 17, 1922.
All the Justices present concurred.
Richards, J., pro tem., and Myers, J., pro tem., were acting. *267