People v. Rose

KNIGHT, J.

Appellant was indicted for the crime of grand theft, the specific charge being that he unlawfully took, stole and carried away the personal property of Mrs. Blanche Thomas, consisting of fifty shares of the capital stock of the American International Corporation, of the value of #4,000. Upon trial before a jury he was found guilty, and this appeal was taken from the judgment of conviction and the order denying his motion for a new trial.

One of the grounds urged for reversal is that the evidence is legally insufficient to sustain the judgment. The essential facts are as follows: Mrs. Thomas wanted to invest \\ some money in corporate stock, and being entirely inexperienced in such matters she subscribed for a weekly publication edited by appellant, which purported to furnish information as to the condition of the stock market. After taking the publication for a few months she called on appellant at the offices of the publication, as a result of which she was induced to invest $1,000 in the stock of a company known as the “Coast Foundation”. Shortly afterward she again conferred with him and was then advised to purchase Rainier Pulp and Paper Company stock,' which she agreed to do; and for such purpose, she mailed appellant a check for $2,000. She did not receive an acknowledgment of the receipt of the check, and after waiting nearly two weeks phoned appellant about the matter, and was informed, so she claims, that the delay was due merely to carelessness on his part, and that he would send her a statement at once. The next day Mrs. Thomas received a letter from him inclosing a statement of account issued by a brokerage firm showing that with her money appellant had opened an account with said firm in his own name and had purchased on margin the stock of a different company, namely, fifty shares of the capital stock of the American International Corporation; that the full purchase

[651]

price thereof was $3,868.75, against which there was a credit payment of $2,000, and that the balance due was $1868.75. The letter in which the statement was inclosed read as follows: “As a matter of convenience in making purchases and sales, I placed the $2,000 received from you on July 25 in an account at J. J. Barneson & Co., as per statement enclosed herewith. This letter will act as your receipt for the funds and evidence that the account is held by me in trust for you. Should this manner not meet with your approval, I will be pleased to assign and transfer the account to you at any time. ...” Then, after describing the nature of the business of the American International Corporation and predicting a promising future for it, the letter continued: “If you are satisfied with the manner in which I have planned to handle your account, I will arrange with the broker so he will mail to you direct statement of the account at regular intervals, so you may be familiar with it at all times. Trusting that all I have done in this regard meets with your hearty approval, and assuring you that I will handle the account in the same manner as if it were my own funds instead of yours, . . . ” In response thereto Mrs. Thomas mailed appellant a second check for $2,000, to cover the balance due on the stock. The letter accompanying the check was dated August 8th, and read as follows: “So many appointments were made yesterday that I had to keep, by the time I arrived in that part of town the bank was closed. I hope the delay has not caused any confusion as to the plans you may have formed. Please find enclosed the check for two thousand dollars and believe me, gratefully yours, ...” About this time she informed appellant that she intended to sail for Australia within a few days to be gone several months, and she requested him to suspend the sending of any further mail until she returned. Accordingly she left during the early part of September, and as will hereinafter appear did not return until the following December. Upon the- receipt of the second check for $2,000 appellant applied the same as a final payment on the purchase price of the American International Corporation stock; but within a few days thereafter, through the account he had opened in his name with said firm, purchased on margin the stock of several other corporations, pledging as security for the payment thereof the American