People v. Kirk

TYLER, P. J.

Defendant was charged and convicted of the crime of embezzlement. He appeals from the judgment and order denying his motion for a new trial. The information charges him with having on or about the fourth day of June, 1927, embezzled the sum of $400, the personal property of one Bessie N. Buschke. Defendant is an attorney at law. He represented the owners of certain real property in Alameda County who were nonresidents of the state. One Glen H. Mosley, a licensed real estate broker, had supervision of the property for the collection of rents and other purposes. He acted under the direction of defendant Kirk. The property consisted of a residence situated at Broadmoor Boulevard, San Leandro. Moseley, advertised the same for sale, and as a result thereof certain offers were received by him from prospective purchasers. The first offer was for the sum of $5,000 cash. Moseley, believing that defendant had been given authority as the agent and attorney for the owners to make the sale, communicated with him concerning this offer. Defendant submitted the offer to the owners for their approval, but they were dissatisfied with the same and so advised him. Subsequently, on April 13, 1927, Bessie N. Buschke made an offer of $5,750. This offer was conditioned on a down payment of $500, balance at the rate of $45 per month to be applied to principal and interest. Mrs. Buschke was guardian of the estate of her husband and her offer was subject to the further condition that the court approve

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the transaction. Upon receiving the offer Moseley took a deposit from Mrs. Buschke in the sum of $100, subject to the owner’s approval, and submitted the offer to defendant Kirk. Kirk informed Mrs. Buschke that if she wanted the property that her offer and terms would be acceptable. Defendant volunteered to attend to the application before the probate court for permission to use the guardianship funds for the purchase without charge to Mrs. Buschke. Prior to the hearing of this application and on May 27th of the same year Mrs. Buschke sent her bank-book to defendant Kirk, together with an order on the bank authorizing it to pay Kirk the sum of $400 from the guardianship account. Defendant withdrew this sum from the said account on June 4, 1927, and deposited the same to his personal account and subsequently cheeked out the funds for his own personal benefit. On the same day Mrs. Buschke signed a deed of trust and a note in conformity with the terms of sale. Prior thereto and on May 1, 1927, Mrs. Buschke had entered into possession of the premises with the understanding that the deposit of $100 which she had made with Moseley was to be considered as rent in the event that the court failed to approve the transaction. Upon the hearing of the application defendant secured an order of the court that the sum of $424.48 be invested in the enterprise. Subsequent to July 1, 1927, Mrs. Buschke made three monthly payments of $45 to defendant and received his receipt for the same. At various times during the months of June and July, 1927, defendant paid Moseley the amount of his commission for procuring the purchaser. It appeared in evidence that at the time Mrs. Buschke made her offer for the property defendant telegraphed the owners concerning the same and recommended acceptance. He received a telegram in reply advising him not to accept the offer upon the tentative terms, the owners stating that they wanted cash. As heretofore stated, defendant thereafter received the payment from Mrs. Buschke on May 27, 1927, but he failed to inform his clients of this fact, but placed the money in his own personal bank account and subsequently checked out the amount for his own personal use and benefit. At the time Mrs. Buschke made the payment to defendant and at various other times, she demanded a deed from him, but was put off from time to time, with