People v. Malone

SPENCE, J.

Defendants were jointly charged with conspiracy to commit grand theft and with grand theft. Both defendants pleaded not guilty and waived a trial by jury. Upon a trial by the court, both defendants were found guilty as charged and they have appealed from the judgments of conviction and the orders denying their motions for new trial.

The first count of the informations charged conspiracy and the remaining five counts charged theft. The conspiracy count alleged five overt acts and each of said five overt acts constituted the basis for one of the subsequent counts charging theft. It was alleged therein that said defendants, together with one Harmon B. Green did unlawfully conspire to commit grand theft and in pursuance of said conspiracy did unlawfully take the building and loan association pass-books of the complaining witnesses, the pass-book in each instance being of a value in excess of $200. Said Harmon B. Green had been previously tried and convicted and is not directly involved in this proceeding. The transcript was filed herein on December 29, 1936, but defendant Bouer has neither filed a brief herein nor presented any argument to this court in

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support of his appeal. The appeal of said defendant will therefore be dismissed.

The charges of theft were set forth in general terms as permitted by section 952 of the Penal Code, and the prosecution proceeded to trial upon the theory that defendants were chargeable with both obtaining property by false pretenses and with larceny by trick and device. One of the main contentions of defendant Malone on this appeal is that the evidence was insufficient to show the commission of theft by any of the parties under either theory, but as we are satisfied that the evidence was sufficient to show larceny by trick and device, we shall not endeavor to cover the evidence relating to false pretenses.

The transcript is voluminous and it discloses the operations of defendants Malone and Bouer with respect to several corporations. It is unnecessary to set forth all the evidence relating to these operations but it may be stated that many of the transactions and dealings appear to have been of a most unusual nature.

In 1934, and at a time when the Postal Union Life Insurance Co. was threatened with a revocation of its permit to do business, defendants Malone and Bouer acquired 20,000 of the 25,000 shares of capital stock of said corporation. Immediately thereafter they organized Postal Underwriters, Inc., and while defendant Malone soon withdrew as a director of said company, his wife was made a director and president thereof and it is apparently conceded that defendants Malone and Bouer controlled said company through persons acting nominally as its officers and directors. Green thereafter acted as agent of both the Postal Union Life Insurance Company and the Postal Underwriters, Inc., his salary being paid by the former until June, 1935, and thereafter by the latter. His work was done in the northern part of California and particularly in Monterey County. He worked under the immediate supervision of Bouer but both Green and Bouer consulted with Malone on various occasions.