People v. Gould

[448]

DOOLING, J.

Appellant was convicted by the court sitting without a jury, a jury trial having been waived, of the crime of grand theft. He appeals from the judgment and order denying his motion for new trial.

It appears that appellant had an option to purchase from one Fred N. Pigeon the gold bearing gravel in a mine known as the Pigeon Mine. He met the complaining witness, one Cholia, an elderly man, in the tailor shop of one Selix. Appellant sold to Cholia a 10 per cent interest in “the net gold production of the Pigeon Mine” for $1250 and gave him a joint venture agreement in writing evidencing this sale which recites: “said option covers the mineral rights only.” This was dated December 20, 1949. As to the initial transaction Cholia got just what he paid for.

Subsequently appellant caused to be incorporated in Nevada a corporation, “Dixie-Cal Cooperative Syndicate” with a capital stock of $25,000 divided into 25,000 shares and he gave Cholia a certificate for 2,500 shares of this corporation on February 1, 1950, without further payment by Cholia, which appellant signed as secretary and Cholia, at appellant’s suggestion, signed as president. Appellant had no permit from the Corporation Commissioner of California to sell this stock but he was not charged with a violation of the Blue Sky Law.

Cholia gave appellant other sums of money from time to time for which he received promissory notes signed by appellant. He testified that appellant represented that these sums were needed to buy machinery for the mine and to work the mine. Altogether Cholia testified that he gave appellant $10,115 although the information charges $4,985.

The case was tried on the theory that the money was obtained by false pretenses. There is no substantial proof that the representations testified to by Cholia, that the money was needed for the purchase of machinery and to work the mine, were false or that the money was not used for those purposes by appellant. A witness for the People, Clift, testified that he was employed by appellant in 1949 from the spring to the fall in cleaning out and retimbering the mine and, over objection on the ground that this antedated the first transaction with Cholia, that up to the time he left in the fall of 1949 no new machinery was purchased for the mine. This evidence had no probative value as to what occurred after Cholia gave his money to appellant, although the trial judge from a remark made from the bench when he was summing up the evidence apparently gave it such construction. The only other evidence