People v. Angelo

PULLEN, P. J.

Appellant was indicted for grand theft, being charged with the unlawful taking, on or about October 15, 1934, of the property of Tom Giahos, consisting of some $500 in lawful money of the United States.

Appellant was tried and found guilty of the crime of petit theft, and judgment was pronounced. Prom this judgment and from an order denying his motion for a new trial, this appeal is prosecuted.

It appears that on September 26, 1934, and for some 18 years prior thereto Tom Giahos, William Poulos and defendant Angelo had been associated as partners in a produce and grocery business. On September 26, 1934, Angelo purchased the undivided one-third interest of Giahos in said business, and immediately Giahos severed all relationship with the partnership, which was thereafter conducted by Angelo as the owner of a two-third interest, and Poulos as the owner of a one-third interest.

[627]

The sale from Giahos to Angelo was evidenced by a contract to purchase, by the terms of which Angelo agreed to pay Giahos $8,500 for the interest of Giahos, of which $5,000 was payable in cash, and the balance by a promissory note for $3,500 which note was subsequently paid in accordance with the terms thereof. A bill of sale was delivered at the time of the consummation of the deal, and recited that in consideration of the sum of $10 Giahos sold, assigned, transferred and conveyed to Angelo, all of his right, title and interest in and to the specified business including all of the stock in trade, furniture, fixtures, equipment and assets, the bill of sale reciting it was the intention of the seller to completely divest himself of any interest whatsoever in or to the business or building occupied thereby.

After these various papers evidencing the sale had been executed and delivered, Giahos and Angelo had a conversation wherein it is alleged that Giahos asked Angelo if he could give him a sum equal to one-third of the profits of the partnership for the months of August and September 1934, to which Angelo assented. It is growing out of the profits for September that this charge was filed.

It appeared that it was the custom of the bookkeeper of the partnership, at the end of each month to prepare a profit and loss statement. There had never been an accounting of the business, the profits being allowed to accumulate. When the profit and loss statement was prepared for September, it showed gross sales for the month of September of over $19,000, and an increase in the inventory from $12,000 to $16,000, with gross profits of over $3,700, and with a net profit of approximately $2,500. When Angelo examined this statement he stated that it showed too much net profit, as from his prior experience he knew that the gross profits should run about 13 per cent or 14 per cent, and the net profit about 5% per cent to 6% per cent of the gross sales.