People v. Ledbetter

NOURSE, J.

The defendant was tried upon an information charging a violation of section 508 of the Penal Code, covering the crime of embezzlement as an agent. From the judgment following the verdict of guilty and from the order denying defendant’s motion for a new trial he has appealed upon a typewritten record.

The defendant and the complaining witness were on very intimate terms during the early part of the year 1926 and were engaged to be married. While enjoying the confidence and trust of the complaining witness the defendant persuaded her to transfer to his possession an automobile which he agreed to sell for the sum of $1,050 and agreed to invest the proceeds of that sale in stock of the National Ice Cream Company. Having obtained possession of the car and the written evidence of ownership for this purpose the defendant sold the car for $300 in money and a Ford coupe valued in the trade at $450, which he later sold for the sum of $350. All this money the defendant admittedly appropriated to his own use while he continued to assure the complaining witness that he had received the full sum of $1,050 with which he would purchase the stock of the ice-

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cream company as soon as he could reach the manager of that concern. A short time thereafter the defendant obtained from the complaining witness the further sum of $450 upon his representation to her that he would invest that amount in an automobile finance company. It developed at the trial that this company had not been incorporated, but in fact had been refused incorporation by the state commissioner of corporations, and the defendant appropriated this sum to his own use. About the time the automobile was transferred the defendant executed and delivered to the complaining witness his promissory note in the sum of $1,050 bearing interest at twelve per cent (12%) per annum. It was the theory of the state that this note was in the nature of a receipt given to the complaining witness to allay her fears caused by defendant’s failure to deliver to her the stock in the ice-cream company. The defendant, however, claimed that the note was given as evidence of a loan from the complaining witness of the money received from the sale of the automobile and that the difference óf $350 between the face of the note and proceeds of the sale was a bonus which the defendant voluntarily gave to the complaining witness for the use of this sum of $700.