People v. Ahern

SPENCE, J.

Defendant was tried by the court, sitting without a jury, upon an indictment containing two counts charging grand theft. He was found guilty on both counts. His motion for a new trial was denied and he appeals from the judgment of conviction and from the order denying his motion for a new trial.

The original indictment charged in the first count that defendant unlawfully took certain real property of Catherine Malone Ahern of the value of $3,400; and in the second count, that he unlawfully took certain personal property of said Catherine Malone Ahern consisting of money in the sum of $8,225.22. An amended indictment was thereafter filed in which the first count was amended but the second count remained the same. The first count of the amended indictment was quite lengthy but it may be briefly summarized. It was alleged that defendant made certain representations ■to Mrs. Ahern regarding the intentions of her sisters to have her committed to the state hospital and to obtain for them

[657]

selves control of her property; that he further “stated and represented to said Catherine Malone Ahern that if she would deed the said real property to him, he would hold it for her use and benefit and as her trustee”; that “in reliance upon said statement and representation”, Mrs. Ahern executed and delivered a deed to defendant; that thereafter and on August 17, 1936, defendant “contrary to and not in due or lawful execution of said trust” sold said real property for the sum of $3,500 and “wilfully, unlawfully, feloniously and fraudulently embezzled, converted and appropriated” said sum to his own use.

Upon the trial, it was the theory of the prosecution that defendant had received both the real property described in the first count and the money described in the second count upon his agreement to hold the same in trust for the use and benefit of Mrs. Ahern and that he had thereafter embezzled the proceeds of the sale of said real property and also the money described in the second count. It was the theory of the defense that no trust was created and that Mrs. Ahern had given defendant both the real property and the money as his own upon the agreement that he would take care of her for the rest of her life.

There is no conflict as to any material fact except the understanding upon which the real property and money were transferred to defendant. Mrs. Ahern was defendant’s aunt by marriage and was 70 years of age. Defendant was 45 years of age. She transferred the real property and money to him in April, 1936, and she died on August 27, 1936. The deed was dated April 8, 1936, and was recorded on the same day. The deposit of the $8,225.22 in defendant’s name was made on April 16, 1936. He sold the real property on August 17, 1936, for $3,500. It is conceded that all of the proceeds of the sale and practically all of the money deposited in the bank was used by defendant for his own purposes.