People v. McClain

140 Cal.App.2d 899 (1956) THE PEOPLE, Respondent,

v.

HAROLD F. McCLAIN, Appellant.

Crim. No. 3205. California Court of Appeals. First Dist., Div. Two.

Apr. 19, 1956. Benjamin F. Marlowe for Appellant.

Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, Raymond M. Momboisse, Deputy Attorney General, J. Frank Coakley, District Attorney (Alameda), Francis W. Vukota and Zook Sutton, Deputy District Attorneys, for Respondent.

NOURSE, P. J.

The defendant was tried to a jury on an information framed on four separate counts--two charging grand theft, and two charging the issuance of fictitious checks. The jury found him guilty on the first count, and not guilty on the other three. His motion for a new trial was denied, and he was admitted to probation with directions to restore the embezzled money.

There is no material dispute in the evidence. The verdict rests largely on the admission and confession of the defendant. The only ground urged for a reversal is a claim of error in the instructions to the jury. [900]

The defendant was local manager of a branch store of the Owl Drug Company. He was permitted to take from company funds $1,000 a day which he was required to distribute to the several cash registers for the purpose of making change for the customers. Prior to the trial he gave a statement in writing to this effect:

"My name is Harold Frank McClain and I live at 701 Walker Ave., Oakland, California. About 4 weeks ago I started preparing fictitious checks and estimate at this writing that the total amount to between Seven Hundred and Fifty and Eight Hundred Dollars. I fully realize this was wrong and making this statement of my own free will, with no threat or promise having been made to me."

This statement was supplemented by the defendant's testimony that he had taken the moneys from the working fund for his own personal use. He expressed the intention to return the money to the owner.