People v. Temple

SHINN, J., pro tem.

Defendants Charles P. Temple and Fred E. Temple were convicted of the crime of conspiracy to commit grand theft and also upon eighteen counts of grand theft. Each appeals, contending that the evidence was insufficient to support a conviction upon any count of the indictment and complains of alleged errors in the admission of evidence and in the refusal to give certain instructions.

The evidence of conspiracy was circumstantial. The defendants are brothers, Charles P. Temple being a lawyer and Fred E. Temple being a contractor and builder and dealer in mortgages and trust deeds. They had offices together. Fred E. Temple was acquainted with one Louise Kessler, a widow seventy-two years of age, administratrix of her deceased husband’s estate. Although she had an attorney, through Fred E. Temple she became acquainted with his codefendant

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brother, who was substituted as her attorney as administratrix on September 22, 1932. He soon took control of her property and business and caused her to file a certificate that she was doing business under the fictitious name of Kessler Holding Company,' for which company Charles P. Temple commenced the transaction of business under a power of attorney. He opened a bank account for the company with an initial deposit of $9,683.62, he having the sole right to draw checks upon the same. In less than three months after he became her attorney, Charles P. Temple came into control of all of the assets which Mrs. Kessler had theretofore placed in trust, consisting of some twenty trust deeds and mortgages, as well as certain street bonds. The transactions in which the brothers participated commenced in September, 1932. Moneys were withdrawn from the company and used by the defendants. The company kept no books and its bank cheeks were either lost or destroyed, so that in December, 1932, when a corporation was organized which took over the assets of the company, the bookkeeper who was employed by the corporation was unable to set up a complete set of books and was obliged to carry, as he did under instructions of Charles P. Temple, numerous items, evidenced by checks, as ‘ ‘ cash items ’ ’ until the death of Mrs. Kessler in January, 1933. The directors of the corporation were Louise Kessler, Charles P. Temple and Kenneth L. Temple, but its business was conducted by Charles P. Temple. The corporation’s account books were frequently examined by both defendants. The evidence shows a close cooperation between the two brothers in numerous transactions, in which one or the other or both profited at the expense of Mrs. Kessler. Aside from the use of moneys, the defendants made and negotiated sales and exchanges of trust deeds and other property to the company and later to the corporation, in one instance buying with the corporation’s money for $2,500 a trust deed for which the corporation paid them $4,500. By such means as this, and in transactions which it is unnecessary to enumerate or describe, the assets of the corporation, which were in reality the assets of Mrs. Kessler, were gradually and systematically transferred to the defendants. Indeed, the so-called “business” carried on for the supposed benefit of the elderly Mrs. Kessler appears to have consisted of a process of absorption of her means by the defendants. It is quite true that both did not benefit