People v. Indrieri

STURTEVANT, J.

The defendant was convicted on a charge of embezzlement. He made a motion for a new trial, the motion was denied, and he has appealed from the judgment of conviction and the order denying him a new trial.

On the twenty-eighth day of January, 1925, and for some time prior thereto, Mr. J. O. Traber was an attorney at law located at Fresno and engaged in the practice of the law at that place. The defendant was not an attorney at law admitted to practice in the courts of record of the state of .California, but he had offices with Mr. Traber. As stated in testimony by the defendant he was not a law partner of Mr. Traber, but he was a business partner. Mrs. Markese, a daughter of Mr. and Mrs. Zero, was one of the clerks in the office. The defendant is an Italian, but speaks the English language, as shown by his testimony contained in the transcript. Some time prior to the twenty-eighth day of January, 1925, an action was commenced in the superior court of Fresno County entitled

Louis F. Ryan

v.

Jack Zero and Lucy Zero, Ms wife.

It was a suit in equity brought by the plaintiff to obtain a decree declaring terminated a certain contract for the purchase and sale of real property. Among other things it was alleged in the complaint that the purchaser had made default in the payment of an installment of $300 which had become due and payable under the terms of

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the contract. Shortly after the defendants in the civil action had been served with a copy of the summons and complaint they called at the office where the defendant was located. Mr. Zero is an Italian and so little informed that he testified through an interpreter. Mrs. Zero also testified through an interpreter. Christine Delicci, a daughter, and Mr. Simone, a friend, both speak English and testified without the assistance of an interpreter. The conversations held in the lawyer’s office were conducted at least in part in English and in part in Italian. Mrs. Delicci in those conversations acted as interpreter as she understood what was said in the Italian language and also what was said in the English language. The negotiations included several calls at the office occupied by the defendant. Mrs. Delicci testified that on one occasion Mrs. Zero, Mr. and Mrs. Delicci and Mr. Simone attended. There they found the defendant, Mr. Traber and Mrs. Markese. All participated in the conversation that followed. At that time the defendant advised Mrs. Zero that it would be necessary to deposit in court $300. Thereupon Mrs. Zero borrowed the money from Mr. Simone on a promissory note. Mr. Simone handed the money over to the defendant. The defendant put the money in his pocket. She also testified that this visit was brought about by reason of a message which the Zeros had received from the defendant on the previous day. Mrs. Delicci repeatedly stated that in reply to questions propounded to him the defendant said that he would take the money up to court “in just a minute,” and “right in a minute.” Mr. Delicci testified regarding the same conversation. He said that the defendant told Mr. Simone to give the Zeros $300 so they could give it to the defendant to take up to court. Mr. Simone gave the money to Mrs. Zero and she gave it to the defendant. The defendant said he was going up to court to deposit it “at that moment, just within five minutes of that time.” The defendant said he wanted the money in cash. The witness asked the defendant if he wanted the witness to go with him to court and the defendant said he would go alone. He said he would go himself in five, minutes, he would deposit it. Several of the witnesses present stated that on each visit that the Zeros made to the office that Mr, Traber was present. Mr.