People v. McNeil

California Court of Appeal Jun 28, 1938 No. Crim. 3095Published

Before: McCOMB

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Holding. The court affirmed the defendant's convictions for grand theft, holding that the evidence was sufficient to support the verdicts, that the prosecution was not required to elect a specific theory of theft, and that receipt of a check supports a finding of obtaining money absent evidence the check was not cashed.

Issues

Whether there was substantial evidence to support the jury's findings of fact.
Whether the trial court erred in admitting immaterial evidence.
Whether the prosecution must elect a specific theory of theft (e.g., larceny, embezzlement, false pretenses).
Whether there was a fatal variance between the pleading and proof regarding the receipt of checks.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The law is settled that under sections 484, 490a, and 952 of the Penal Code, where defendant is charged with grand theft the district attorney is not required in advance of the proof to elect upon what theory the prosecution is to proceed”

“Proof of receipt of a check sufficiently supports a finding that defendant obtained money, in the absence of evidence that the check was not cashed.”

McCOMB, J.

Defendant was convicted after trial by jury on seven counts of grand theft. This appeal is from the judgments. There is also a purported appeal from the sentences.

Viewing the evidence most favorable to the people (respondent) , the facts are:

(a) November 9, 1933, defendant met Mrs. Bovell at a metaphysical meeting in Hollywood, California. He thereafter stated to her that, if she would let him have her money, he would double her interest and give her good security. She thereupon gave defendant $75,000 and subsequently thereto additional amounts, making a total of $155,000.

March 1, 1934, defendant signed and delivered to Mrs. Bovell a document in which he acknowledged receipt of $155,-000 from her and as security for this sum he gave her the following:

(1) A trust deed note in the sum of $25,000 secured by a trust deed on certain real property;

(2) A promissory note in the sum of $75,000 executed by the Mojave Smelting Co. secured by a chattel mortgage;

(3) A promissory note in the sum of $15,000 executed by the Light Conservation Bureau of California;

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(4) 300 shares of stock in the Light Conservation Bureau of California;

(5) 2,125 shares of stock in the Mojave Smelting Co.

November 10, 1934, defendant told Mrs. Bovell that he had sold the smelter of the Mojave Smelting Co., and that if she would release the security he had given her he would return her money in three or four days. In reliance upon defendant’s statement she returned to him all of the above-described securities which she had received from him and took in lieu thereof defendant’s unsecured note in the sum of $155,000. Mrs. Bovell received $4,238 from defendant June 21, 1935, and gave him an additional credit for $16,000 for a ranch in Merced County which she received from him.

Aside from these two items defendant did not return to Mrs. Bovell the money he had obtained from her or any portion thereof, nor did he return to her all or any of the securities mentioned above and which he had at one time given her as security for the money he had obtained from her.

People v. McNeil

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