People v. Costello

SHINN, P. J.

In a court trial defendant was convicted of two offenses of grand theft. It was alleged and found to be true that defendant had suffered a prior felony conviction of issuing a cheek without sufficient funds. A third count of the information charging issuance of a check without sufficient funds was dismissed on defendant’s motion under section 995, Penal Code.

Trial by jury having been waived, the case of the People was submitted on the testimony and exhibits introduced at the preliminary examination. The court expressed doubt as to the present sanity of the defendant, suspended proceedings and appointed two medical experts to examine defendant and report their findings to the court. Subsequently, after considering the reports and defendant’s medical record, the court found that defendant was presently sane, and trial was resumed. Defendant testified and introduced evidence consisting of numerous exhibits. Defendant made a motion for a new trial and filed an application for probation, both of which were denied. The present appeal is taken from the judgments of conviction.

Although defendant was represented by counsel at the trial, he prosecutes his appeal in propria persona. The offenses of which defendant was convicted consisted of: The receipt from one Byron H. Brown of $3,294.25 as the purchase price of an automobile; the car was delivered to Mr. Brown and when he asked whether anything more was due, defendant

[516]

represented that everything had been taken care of and that Brown would receive a pink registration slip from the Bureau of Motor Vehicles within 10 days or two weeks; after receiving Brown’s check, defendant purchased the car from Leslie Lumley, Inc., issuing therefor his check for $3,221.52, which was dishonored by the bank; the seller demanded the car from Brown, who informed defendant of that fact; defendant agreed to make good the check but failed to do so; Brown reported the matter to the police and defendant sent him $1,500 which he paid over to Lumley; shortly thereafter, Brown paid Lumley the unpaid balance of $1,721.52; Brown has been reimbursed by defendant to the extent of $1,900 and no more. The other complaining witness, Lloyd G. Dennee, paid defendant $4,185 for an automobile which defendant represented would be delivered within 10 days; defendant placed an order for the automobile with Leslie Lumley, Inc., paying down $100; Mr. Dennee never received the automobile nor was he reimbursed by defendant in any amount. Defendant at the time was doing business as Consolidated Purchasing and Sales Company. Mr. Brown’s check was drawn in this name and was so endorsed, and also endorsed by defendant. Immediately after the deposit of $3,194.25 in the account of Consolidated, the amount was withdrawn by defendant and appropriated to his own use. Defendant had one account in the Lynwood Branch of the Security First National Bank in the name of Consolidated Purchasing and Sales Company with a balance of $99.31, also a commercial account in his own name with a balance of $6.50, together with a savings account of $100. At none of the times in question did he have in his own account more than $634.73. We have read defendant’s testimony and do not find therein any reasonable explanation of his failure to deliver to the complaining witness Dennee the automobile which he had purchased, or to furnish clear title to the car which was delivered to Mr. Brown. It appears from the testimony of Mr. Dennee, as well as that of defendant, that about a month and a half after making his purchase, Dennee demanded the return of his money and that defendant stated he was unable to return it. It also appears that defendant agreed to deliver Dennee a 62 Cadillac Convertible, that Dennee after-wards expressed a willingness to accept a sedan, and that defendant afterwards offered to transfer to Dennee a 61 Cadillac, but that the transfer was never made.