People v. Downing

TYLER, P. J.

Appellants, together with one F. H. Mc-Cann, were accused in an indictment of conspiracy to take property of another through false pretenses and representations. The co-defendant, McCann, was not apprehended and the case proceeded to trial against the two appellants upon their pleas of not guilty. When the evidence of the prosecution was closed a motion was made to advise the jury to acquit on the ground that the charge was not proven. The motion was denied. After a full trial defendants were convicted. Motion for new trial was made and denied. Motion for probation followed. The court granted this motion to each appellant, the probation of Palen being for five years upon condition that he serve a term of six months in the county jail and make restitution, the probation of Downing being for five years upon condition that he serve a term of one year in the county jail and make restitution. Notice of appeal was thereupon given, the appeal being taken from the final judgment and the order denying the motion for a new trial.

It is the claim of respondent that in view of the trial court having granted probation, there has been no final judgment rendered against appellants and therefore any attempted

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appeal from such purported judgment must be dismissed. While this is true with reference to the appeal from the judgment, appellants have appealed from the order denying their motion for a new trial in which they claimed, as in the appeal from the judgment, that the verdict is unsupported. They are, therefore, entitled to a hearing upon this motion under section 1237 of the Penal Code. This contention necessitates a review of the evidence. As heretofore indicated appellants at all stages of the proceedings challenged the sufficiency of the evidence.

Prom the facts it appears that appellant Downing is a licensed broker engaged in the sale of business enterprises. In November, 1934, one Austin M. Huffman visited Downing ’s office with reference to the purchase of some character of business. Downing informed him appellant Palen and one McCann owned a certain garage as co-partners and that Mc-Cann was withdrawing from the co-partnership for the reason that he desired to resume his business of mining engineer; that the business was clearing $300 a month and was selling 3,000 gallons of gas during such period; that the storage of automobiles and gasoline sales took care of the overhead, including the rent, leaving a net profit for all repairs made. Huffman, the prosecuting witness, went to see the garage and there met appellant Palen, who showed Huffman over the premises and repeated to him practically the same statements made by Downing. He represented that the place was selling about 3,000 gallons of gasoline a month and that the car storage and sale of gas paid the overhead, and one-half share of the profits for repairs should be from $150 to $200 a month. He also informed him that if he was not a mechanic or mechanically inclined he did not want him as a partner. Huffman, after inspecting the premises, expressed himself as being satisfied. A few days later the parties met in appellant Downing’s office and a contract was prepared by which Huffman agreed to make the purchase of the one-half interest for the sum of $750, $300 to be paid in cash, the balance out of the profits of the business.