Crim. No. 364.
February 6, 1915.
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. George H. Cabaniss, Judge presiding.
The facts are stated in the opinion of the court.
Chauncey Gardner, for Appellant.
U.S. Webb, Attorney-General, George Beebe, Deputy Attorney General, and Robert M. Clarke, Deputy Attorney-General, for Respondent.
The defendant appeals from a judgment entered pursuant to a verdict finding him guilty of the crime of grand larceny, and from an order denying his motion for a new trial.
According to the evidence, the defendant obtained from the prosecuting witness, Minnie Benner, the sum of one hundred dollars upon a representation made to her by the defendant that the money was to be paid over by him to blackmailers who, he told her, were threatening a criminal prosecution against the defendant and said prosecuting witness. The evidence tended to show, and the jury evidently believed, that there were no such persons threatening any prosecution and that the representations were falsely made by the defendant in order to impress fear upon the mind of Miss Benner and thereby induce her to give up possession of the money.
Although some assignments of misconduct on the part of the trial judge are contained in appellant's brief, it appears that no objections were made at the trial to the language used by the court, except in one instance. At that time the judge disavowed any intention to make any comment upon the testimony of the defendant, and instructed the jury that he was not to be understood as having made any suggestion, comment, or intimation whatsoever as to the truth or falsity of the testimony. Thereupon defendant's counsel expressed himself as satisfied. We also are satisfied that the defendant suffered no prejudice by the conduct complained of.
At the oral argument the defendant's counsel admitted that the only point that is really worthy of the serious consideration of this court is based upon defendant's contention that the money was paid over to him by the prosecuting witness as a loan whereby the relation of debtor and creditor was established; that the title to the money passed to the defendant, and that therefore there could be no larceny. Our examination of the record convinces us that there is no other question requiring our attention. There is ample evidence to sustain the jury's implied finding that the transaction was not a loan and that the prosecuting witness parted merely with the possession of her money and that the title did not pass. Although Miss Benner referred to the transaction as a loan, her testimony further shows clearly that she gave the money to the defendant under the influence of said representations, in order to prevent the making of public charges by the supposed detectives, and for the specific purpose of having it given to the detectives in order to keep herself and the defendant from being arrested. The defendant himself admitted receiving the money and denied that he received it as a loan. His testimony is that not one single word was said about a loan, and that "all she said was to give it to those men to keep their mouths quiet." Having so testified, the defendant is in the poorest possible position to contend now that the evidence necessarily proved the transaction to be in the nature of a loan.
The case is clearly within the principle of such decisions as People v. Rial, 23 Cal.App. 713, [ 139 P. 661]; People v. Schenone, 19 Cal.App. 280, [ 125 P. 758]; and People v. Arnold, 17 Cal.App. 68, [ 118 P. 729]. By means of persistent misrepresentations the defendant took advantage of the ignorance and fears of the prosecuting witness and thereby secured possession of her money with the fraudulent intent of appropriating it to his own use. She consented to the change in its possession for a certain purpose that was never consummated and was never intended by the defendant to be consummated. Under these circumstances, it must be held that the jury was justified in finding that the title did not pass and that the defendant was guilty of the crime of grand larceny.
The judgment and order are affirmed.
James, J., and Shaw, 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 April 5, 1915.