People v. Whitney

BARNARD, P. J.

The defendant was found guilty of grand theft by embezzlement, and he has appealed from the judgment and from the order denying his motion for a new trial.

The complaining witness, Smith, became of age in 1943, and entitled to the possession of a trust fund of some $200,000 which was being held for him by a Detroit bank. Since he was 16 years old he had been intimately acquainted with the defendant, having lived in his home at times, and had looked to him for advice and counsel. In 1944 he gave the defendant a general power of attorney and it was agreed between them that the defendant, who was in the real estate business, would manage and invest his funds for him. There was no agreement for any salary, but it was agreed that the defendant was to be reimbursed for any expenses he incurred. During the next three or four years the entire $200,000 was brought to this state and most of it was handled by the defendant. Large amounts were invested in various properties, title being taken in defendant’s name, and at times large amounts were deposited in defendant’s personal bank account. During this period Smith traveled a good deal and considerable amounts were furnished him by cheeks drawn by the defendant. Smith kept no books, and paid little attention to what was being done with his money. He knew of some of the investments, and that titles were taken in defendant’s name, but left practically everything to defendant’s judgment and signed anything he was asked to sign. Finally, foreclosures and other litigation began and Smith, discovering that his money was all gone, revoked the power of attorney. Apparently, neither party had anything left out of these funds.

The evidence discloses a rambling series of financial transactions, but this charge and the trial were centered upon what was done in connection with one item of $45,000. The information charged the defendant with grand theft in that on or about June 18, 1947, he feloniously took and stole “a sum of

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money in excess of $200,” the property of Smith. Shortly prior to that date the defendant recommended to Smith the purchase of an automobile agency for $80,000, a down payment of $45,000 being required. Smith was anxious to make the deal provided that one Cooper would agree to manage the agency. Cooper declined, and Smith dropped the deal. In anticipation of this deal the defendant had withdrawn $45,000 from the funds in the Detroit bank. On June 18, 1947, he deposited this $45,000 in his own bank account, which was overdrawn in the amount of $13.16. On the same day, June 18th, he used $1,611.07 of that money to pay two notes which he personally owed to that bank. On the next day, June 19th, he had Smith sign a written authorization for him to endorse the $45,000 check, which he had already done, and also purchased a cashier’s check payable to himself for $1,000. Shortly thereafter, he used $5,516 of that money in purchasing an interest in a shingle mill, in his own name, and used $10,500 in connection with a ranch in Oregon which had previously been purchased with Smith’s funds in the same manner.