277 P. 121 | Cal. Ct. App. | 1929
Appellant was charged by indictment consisting of three counts with grand theft, it being alleged that he unlawfully and feloniously stole, took and carried away (1) thirty-two thousand shares of corporate stock, (2) a deed of trust, and (3) two thousand five hundred dollars in money, the property of another. He was convicted upon all charges, a motion for a new trial was presented, which was denied, and he appeals from the judgments and order denying said motion. *504
The evidence tended to show that the defendant unlawfully obtained possession of the personal property mentioned by representations that he was interested in a valuable mine which he had incorporated, and in which he would profitably invest for the owners of the securities and money. It subsequently developed that Wickersham had neither a mine nor a corporation, but that he had surreptitiously secured about seventy thousand dollars worth of property of the complaining witnesses for his own benefit, and converted it to his personal uses and purposes. [1] It is first contended that appellant was deprived of his constitutional rights by the failure of the indictment to inform him as to the manner in which the People intended to show that he was guilty of grand theft; that is, whether they would attempt to prove that he stole, took and carried away the property of another, or obtained it by false pretenses, or embezzled it. No demurrer was interposed, and the indictment certainly charges the defendant with a public offense. Appellant relies upon article VI of the constitution of the United States, which provides that in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation. That this article is intended to be restrictive of the powers of the federal government is pointed out in People v. Wilson,
[2] As far as the evidence is concerned, it is clearly sufficient to justify the jury in believing and deciding that Wickersham committed grand larceny in any of the ways mentioned in section
"Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him, or who shall knowingly and designed, by any false or fraudulent representation or pretense, defraud any other person of money, labor, or real or personal property, or who causes or procures others to report falsely of his wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of any money or property or obtains the labor or service of another, is guilty of theft. . . ." *505
Much space is devoted in the briefs to an exhaustive outline and discussion of the evidence, but for the purposes of a decision of this proposition we do not deem it necessary or expedient to delineate details. The extremely exaggerated inducements utilized to gain possession of the money and securities from their owners, one of whom was ill in a hospital, coupled with an absolute lack of foundation for expectation of their fulfillment, and the defendant's admissions that he did not use any of the funds or property in the manner promised by him, warranted the conclusion that there had been a preconceived and consummated violation of the law which denounces theft. The jury were justified in finding that the defendant knowingly and designed by false and fraudulent representations and pretenses secured money and personal property, and that he took and carried away, and fraudulently appropriated it to his own use after it was entrusted to him. That such acts constitute stealing, has heretofore been decided. (People v. Edwards,
[4] It is argued that the indictment having charged that he did "take, steal and carry away" certain property, proof of one of the other species of theft named in section
[6] It is contended that the court did not clearly or properly instruct the jury as to the element of fraud necessarily *506
contained in theft as charged in certain counts of the indictment. The court defined actual fraud as the term is used in section
The judgments and order appealed from are affirmed.
Works, P.J., and Thompson (Ira F.), J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on May 9, 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 May 23, 1929.
All the Justices present concurred.