People v. Tullos

[235]

GRIFFIN, J.

Defendant and appellant W. H. Tullos was charged with the crime of grand theft. The information alleged that on December 27, 1941, he unlawfully took the personal property of the Bank of America National Trust & Savings Association, a corporation (hereinafter called the Bank), consisting of $723.63 in cash. The case was tried by a jury and after instructions were given by the court it returned a verdict of guilty as charged. After denial of a motion for new trial, judgment was pronounced. Defendant appealed.

The evidence shows that the appellant, on November 12, 1941, opened a checking account in the sum of $101.57 with the bank at Visalia under the name of “New Deal Appliance. ’ ’ The account shows that in addition to the original deposit, five additional deposits and numerous withdrawals were made up to and including December 27, 1941, at which time the sum of $723.63 was withdrawn by the appellant personally and the account was closed. A witness by the name of Sweet made a deposit on November 29, 1941, to the account of Olga M. Johnson, as executrix, in the sum of $905, which amount was erroneously credited by some employee in the bank to the New Deal Appliance account. Appellant was the only person authorized to draw checks on that account. The evidence further shows that a bank statement showing a credit of $905 was mailed to the appellant on December 1, 1941, by the bank; that no one in fact deposited the sum of $905 to the account of the New Deal Appliance on November 29, 1941, or at any other time. The sum of $905 was not credited to the account of Olga M. Johnson, as executrix. The error of the bank was not discovered by it until April 10, 1942. Demand by the bank was thereafter made upon appellant for the return of the sum of money involved.

There is no dispute as to the testimony above related. After the People rested their case counsel for the appellant moved the court to “instruct the jury to find a verdict of not guilty on the evidence thus far presented.” This motion was denied. Appellant took the stand and testified that he drew several checks on the account opened by him; that he received the statement of account mailed by the bank about December 1st and that he noticed that the credited item of $905 was made to his account at that time; that on December