People v. Barker

GIBSON, C. J.

Defendants Cleon M. Barker and his wife, Lillie Belle Barker, were charged with grand theft of personal property belonging to Dr. J. P. Gillis. They were found guilty by a jury and were granted probation on condition that they spend a period of time in the county jail and make restitution. They have appealed from the judgment and the order denying their motions for a new trial.

Dr. Gillis, who lived in Los Angeles, was the owner of a section of real property located in the vicinity of Kramer Junction, San Bernardino County, where Barker had a real estate office. In September 1956, Dr. Gillis asked Barker, with whom he had had previous dealings, for his opinion regarding an offer of $25 an acre he had received for the property, explaining that he would not have to pay a commission on the sale. Barker said that the property was worth $50 an acre and that he believed he could get that much for it, and Dr. Gillis said he would be pleased to have him do it. Early in October Barker told Dr. Gillis, in the presence of Mrs. Barker, that he had gone over the property more carefully since his previous conversation with him and had eon-

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eluded that it was worth $35 or $40 an acre. Dr. Gillis said, ‘ ‘All right, try to sell it. ’ ’

Defendants on October 14 told Mr. and Mrs. M. B. Marsh, who were interested in purchasing land in the area, that Dr. Gillis, defendants' 95-year-old family physician, owned land which could be bought for $50 an acre. Barker showed the property to the Marshes, and on November 1 they offered to buy it for $45 an acre and gave defendants a deposit of $500. Mrs. Barker prepared the sales deposit receipts for the transaction. On November 3 or 4, Barker telephoned Dr. Gillis saying he had been unable to find anyone who would pay more than $25 an acre for the property, but had a buyer who would purchase it at that figure. Dr. Gillis pointed out that Barker had previously advised him not to accept an offer of $25 an acre in a transaction in which he would not have had to pay a commission. Barker replied that this was the best he could do, and Dr. Gillis then agreed to sell at $25 an acre on terms to be arranged by Barker.

A few days later, when Marsh inquired about the transaction, Mrs. Barker replied that she had been unable to contact Dr. Gillis. Defendants subsequently informed Marsh that Dr. Gillis had sold the property to his sister, a Mrs. MacDonald, in order to obtain needed cash but that she would sell to Marsh for $45 an acre, the price he had agreed to pay Dr. Gillis. The statements that Dr. Gillis had a sister named Mrs. MacDonald and that he had sold the property to her were false.