222 P. 171 | Cal. Ct. App. | 1923
The defendant has appealed from the judgment herein and the order denying his motion for a new trial. The parts of the information material here are as follows:
"J. Waller, alias Wallen, alias Wallach, alias Wallenstein, is accused . . . of the crime of fraudulently selling and conveying part of a stock in trade of a value exceeding $100 with intent to defraud, hinder, and delay his creditors of their rights, claims and demands, a felony, committed as follows: That the said J. Waller, alias Wallen, alias Wallach,alias Wallenstein, on or about the 3d day of December, A.D. *392 nineteen hundred and twenty-two, at and in said County of Stanislaus . . . was then and there the owner of and was in possession of a large stock in trade consisting principally of men's furnishings, goods, shoes, hats, caps, clothing, suit cases, and leather goods, . . . and was then and there indebted to a large number of persons in an amount exceeding $7,000, the purchase price of said stock in trade (naming the creditors and stating the respective sums owing to them), and he . . . did then and there . . . willfully, wrongfully, unlawfully, feloniously and fraudulently sell and convey a large part of said stock in trade, to wit: a part thereof of a value exceeding $100 . . . and of the value of approximately $4,000 . . . to various and sundry persons and customers, with the felonious and fraudulent intent then and there and thereby to defraud, hinder, and delay his said creditors . . . of their rights, claims, and demands, and did then and there andthereupon, willfully, wrongfully, unlawfully, fraudulently, andfeloniously and with the fraudulent and felonious intent thenand there and thereby to defraud, hinder, and delay his saidcreditors . . . of their rights, claims, and demands, flee,abscond, and depart from the State of California with and didtake with him and remove from said State of California, theproceeds of and receipts from said sales."
Though there are some contradictions, the evidence sufficiently shows the following facts. August 5, 1922, the defendant opened a store at Modesto for the sale of merchandise of the character described in the information. He deposited $5,400 in a bank in that city. In order to purchase goods on credit the defendant exhibited his bank-book, showing such deposit to a large number of wholesale merchants in San Francisco and Los Angeles, and, on the strength thereof, they sold him merchandise on credit to the value of many thousands of dollars. He continued to make purchases on credit for about three months after he commenced business, making partial payments from time to time on some purchases, but generally putting off payment on various pretexts. In the latter part of September the defendant placed a large sign in front of his store, reading as follows: "Everything being sold at factory prices. You will save 50% on all purchases." One witness testified that before opening his store the defendant put up a sign reading: *393 "Will sell merchandise fifty cents on the dollar." There is direct evidence to the effect that defendant sold some articles below wholesale cost and that he kept on display certain articles marked below cost. The defendant purchased goods from wholesale merchants of the approximate value of $12,000 and paid on the purchase price thereof about $4,000. The goods on hand in his store when he ceased to do business were of a value under $4,000. The defendant testified that he sold goods on credit to the value of about $1,500, but he was unable to give the name of a single person to whom he had sold on credit, and hence the jury was justified in treating his testimony as unworthy of belief. Defendant left about the first of December and went to Montreal, Canada, where his family resided. It seems that he informed no one of his intention to leave or of the place to which he intended to go. He mailed the key of his store to the board of trade in San Francisco, stating in an accompanying letter: "I regret to state that it has been impossible for me to continue business." No books or accounts were found in the store after the departure of defendant. He had from time to time drawn on his bank account to such an extent that only a few dollars remained therein when he closed his store and left. It thus appears that during the three months he conducted the business, on the assumption that he sold goods at wholesale cost, his receipts, together with his original bank deposit, were approximately $9,000 in excess of the amount he actually paid to the wholesale merchants. There is no contention that the evidence is not sufficient to justify the verdict.
Appellant urges five grounds for reversal: 1. That two offenses are charged in a single count of the information. 2. That the acts constituting the fraud charged are not specifically alleged. 3. That the district attorney was guilty of prejudicial misconduct. 4. That the provision of section
[1] Section
[3] The offense is charged in the language of the statute. Appellant contends that the particular facts constituting the alleged fraudulent conduct should have been set forth, citingPeople v. McKenna,
[5] The district attorney asked the defendant a number of improper questions on cross-examination, without objection, and finally asked him if he had not been indicted on account of a certain business transaction. To this last question the defendant objected and the court promptly sustained the objection. Counsel for defendant then withdrew *396 the objection and the defendant answered that he had not been so indicted. The district attorney then, after further questions along the same line, asked the defendant if he had not been charged with grand larceny and convicted. While this last question was least objectionable of any asked, counsel for defendant made objection to it, assigned the asking thereof as prejudicial misconduct, and asked the court to instruct the jury to disregard it. The court declined to so instruct. The defendant had answered the question in the negative before the objection was made. The district attorney, if acting in good faith, had the right to ask the defendant on cross-examination if he had been convicted of a felony. (Code Civ. Proc., sec. 2051.) The question, however, was double. It was not proper to ask the defendant if he had been charged with the commission of a felony. If the defendant had answered that he had been charged with the offense of grand larceny but not convicted, then it might reasonably be argued that he was prejudiced by the mere asking of the question. But since one cannot be convicted of a felony without first having been charged with its commission, the charge is implied by the question whether he had been so convicted, and the defendant having answered both parts of the double question in the negative, it does not appear that any prejudice resulted from the question. Besides, by withdrawing his objection to a like question after the court had sustained it and by thereafter permitting, without objection, a line of similar questions, the defendant must be held to have waived the alleged misconduct.
[6] On his direct examination the defendant testified that he had never assumed the various aliases set forth in the information. On cross-examination the district attorney questioned him along the same line. It is urged that this was prejudicial misconduct. It was not assigned as misconduct during the trial. Neither were the questions improper.
[7] It is contended that the proviso contained in section
[8] The jury appended to the verdict a recommendation "to the leniency of the court." After the verdict had been returned and the court had fixed the time for sentence, the trial judge referred to the recommendation and informed the jury that under the indeterminate sentence law he had no discretion to determine the length of imprisonment. One of the jurors replied that they had been under the impression that the court determined the sentence. Based on this reply, appellant argues that the verdict was returned under a misapprehension of the law. The sole function of the jury was to determine the guilt or innocence of the defendant, without giving any consideration to the extent of punishment to be imposed. It is not to be presumed that the jurors violated their oaths by convicting the defendant, without sufficient proof of guilt, in the belief that he would receive a light sentence, or that they would have violated their oaths by voting for an acquittal, when satisfied of the defendant's guilt, because of the severity of punishment provided for the offense. Courts have frequently and properly refused to instruct juries as to the punishments which the law imposes for the commission of offenses being tried, and it would be anomalous to hold that a defendant is entitled to a reversal on the ground that jurors were mistaken as to the extent of punishment provided or the official whose duty it was to determine the same.
The judgment and the order are affirmed.
Hart, J., and Plummer, J., concurred. *399