People v. Cohen

STURTEVANT, J.

The defendant was indicted on a charge of embezzlement. From an order denying him a new trial and from a judgment of conviction he has appealed.

The first point which he calls to our attention and which he contends was a reversible error is this: he claims that the properties which it was alleged he embezzled were of such a nature and in such form that they amounted to mere scraps of paper and had no value. That contention is based on these facts:

On the twenty-seventh day of February, 1922, the defendant was a cleric, agent, or servant of the Bank of Italy, a corporation organized and existing under the laws of the state of California. On that date there came into his possession, care, custody, and control certain indentures of various different numbers, some for the face value of $100, others for $50, others for $20 and still others in the sum of $10, and all aggregating the sum of $3,000. For all the purposes of this case the form of each instrument, except as to the number, the date and place of cashing, and the person to whom paid, was at the time of the trial as follows:

“When countersigned below with Before cashing write here this signature city and date

Lewis Luce - 19—

American Express Company at its paying agencies Pay this Cheque from our

Balance to the order of Weber & Heilbroner $100.00

42nd St. & Madison Ave.

One Hundred Dollars Countersigned here in presence of person cashing

Lewis Luce Jas. P. Eaego Treasurer.”

When the American Express Company delivered the indentures to the Bank of. Italy no one of them was signed or countersigned, Lewis Luce, or otherwise. Neither was the name of the payee inserted, nor was anything inserted in the blank at the top for the date and place of cashing. In all other respects the indenture was in the form as hereinabove set out.

[370]

It will be observed that one of the checks was susceptible of having the blanks filled in by a holder, rightfully or wrongfully, and thereupon the instrument would become on its face the check of the American Express Company. Ordinarily the signature at the top would be inserted at the time the check was issued by the bank or other agency having authority to issue the same. Nevertheless such blank could be filled in (if perchance the instrument came into his possession) by anyone at any time. It was the theory of the prosecution that the name “Lewis Luce” was inserted in each place by the defendant, and that the name is a fictitious name. The appellant contends that because an additional crime had to be committed before one of the checks could properly be cashed that then and for that reason the appropriation by the appellant of the checks before they were signed or countersigned did not constitute embezzlement. However, a most cursory reading of the checks before the appropriation thereof discloses that they were in form checks executed in blank. Because the blanks thereof were filled in by a wrongdoer in a false manner does not alter the main fact. “Embezzlement is the fraudulent appropriation pf property by a person to whom it has been intrusted.” (Pen. Code, sec. 503.) “Any evidence of debt, negotiable by delivery only, and actually executed, is the subject of embezzlement, whether it has been delivered or issued as a valuable instrument or not.” (Pen. Code, sec, 510.) “Every person guilty of embezzlement is punishable in the manner prescribed for feloniously stealing property of the value of that embezzled; and where the property" embezzled is an evidence of debt or right of action, the sum due upon it or secured to be paid by it must be taken as its value; ...” (Pen. Code, sec. 514.) “The word ‘property’ includes both real and personal property.” (Pen. Code, sec. 7, subd. 10.) “The words ‘personal property’ includes . . . evidences of debt.” (Pen. Code, see. 7, subd. 12.) “Larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property of another.” (Pen. Code, sec. 484.) It is settled hnv in California that a check is an evidence of debt that may be sued on.