People v. Wilson

ARCHBALD, J.,

pro tem.

A jury having been waived by him, defendant was tried by the court on an information charging grand theft. From a judgment of conviction and from an order denying his motion for a new trial he has appealed.

[761]

It is contended that the evidence is insufficient to sustain the judgment in that there was no evidence showing (1) an intent to defraud, (2) the perpetration of an actual fraud, (3) any material false representation made to the complaining witness, (4) that the money was obtained by any false pretenses inducing the owner to part therewith, and, further, that the complaining witness made an independent investigation of his own and did not rely on any representations made by appellant.

A. S. Vaughan, the complaining witness, a man seventy years of age and unemployed, testified that in answering an advertisement to the effect that a man could make from six to seven dollars a day painting awnings he went to the office of one Dietz, a broker on Hollywood Boulevard, Los Angeles, where he met appellant, who arranged to go to Vaughan’s home the next evening to talk things over; that appellant came to his home one evening thereafter and said he was making from eight to fifteen dollars a day painting awnings, that he had more work than he could do in Los Angeles and wanted to sell Vaughan an interest in his business, to conduct the same at Long Beach, that he had worked three years developing a secret formula for the waterproofing and painting of awnings and that he would teach the witness all the secrets of the mixture and how to mix and apply the solution, that there was big profit in the work and that the materials did not cost over six or seven per cent of the job done, that Vaughan would soon make back the money he put in, and that any time the latter was not satisfied “that he would take me out with a profit”. Wilson asked Vaughan $600 for a one-third interest at first, but later offered to take $500 for it, saying that one Moffitt had paid him $600 for an interest and that he would have to give him back $100 if he sold for that. He finally agreed to take $300' from Vaughan, the balance of $200 to be paid out of the business. Vaughan delivered his check for $250 at the time the agreement was consummated, and later appellant consented to take $45 in payment of the $50 still due on the $300, which $45 Vaughan also paid by check, receiving in return therefor appellant’s receipt for $50.