People v. Torp

PULLEN, P. J.

Defendant was indicted and subsequently convicted of grand theft, and from the judgment of conviction and order denying a new trial this appeal is prosecuted.

In the first count of the indictment it is alleged:

“ . . . Casper N. Torp was entrusted by Dorothy St. Louis Austin and W. G. Austin, her husband, with the sum of Four Thousand Five Hundred Dollars ($4500.00) . . . for the express purpose of paying the said sum of Four Thousand Five Hundred Dollars ($4500.00) ... to Emilie H. Game; that the said Casper N. Torp did not pay said sum ... or any part thereof, to the said Emilie H. Game, but . . . did wilfully, . . . and in violation of his trust, appropriate said sum ... to his own use.”

The second count is like the first count except it alleges a different amount and different dates.

The evidence discloses that Mary Costa was the owner of a tract of land which was subject to a mortgage for $7,400 held by Mr. and Mrs. Game. In January, 1937, Mr. and Mrs. Austin desired to purchase this land and called upon Torp, an attorney at law of Areata, who had in his possession all the papers necessary to a satisfaction of the deal and was familiar with all the facts concerning this property. In April, 1937, it was agreed that the Austins would buy the property for $7,600, which would pay off the Game mortgage and leave a small balance for the owner. All the negotiations took place in the office of Torp, and when the arrangements had been finally agreed upon the Austins gave to Torp $50 in cash and four checks totaling $7,550, drawn upon their account. At the time of the delivery of these four checks Torp gave to Mrs. Austin a deed of the property from Mrs. Costa, the owner, and a satisfaction of the mortgage from Mr. and Mrs. Gaine.

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Mrs. Austin then returned the satisfaction to Torp, asking him to record it for her. For some reason not clear from the record, this satisfaction was not recorded but was deposited by Torp with a local title company. Torp cashed the several checks and retained the proceeds thereof. After cashing the checks Torp told Mr. and Mrs. Game that he could not pay the amounts due them in satisfaction of their mortgage until an action to quiet title, which had been filed, had been determined, telling them, however, that upon completion of the proceedings the entire sum would be paid them. After waiting several months Mr. Game obtained from the title company the satisfaction of the mortgage, which had been left with the company by Torp. In November, 1937, the suit to quiet title was concluded and Game demanded of Torp his money, and then for the first time learned that the entire sum had been converted.