People v. Ephraim

KNIGHT, J.

The defendant herein was found guilty of embezzlement and has appealed from the judgment of conviction and the order denying his motion for a new trial, urging as grounds for reversal insufficiency of the evidence and misconduct of the district attorney.

The property alleged to have been embezzled was a promissory note for the payment of the sum of $500, signed by Morris Chernow and wife, and delivered to appellant in part payment of the purchase price for the sale to Chernow and one Belan of an apartment house business in Oakland, owned and operated by Mrs. Nellie Keaeh, the information charging that said note came into appellant’s possession as agent and bailee of Mrs. Keaeh and was by him fraudulently and feloniously appropriated to his own use. The fact that appellant received the note from Chernow is not controverted, nor is there any claim made that the same was not afterwards converted by appellant to his own use, but the ownership of said note is disputed. With respect thereto appellant contends that the evidence fails to establish any agency between himself and Mrs. Keaeh relating to the sale of her interests in said apartment house, but,' on the contrary, shows that he was acting as principal, and as such acquired said note in- a transaction had with Chernow separate and distinct from his business relations with Mrs. Keaeh; and, moreover, that it shows that he appropriated the note “openly and avowedly, and under the claim of title preferred in good faith”; and that therefore under the provisions of section 511 of the Penal Code he cannot be held to be guilty of embezzlement even though his claim of title be untenable.

[716]

After reviewing the evidence we are satisfied that the propositions thus advanced by appellant as absolving him from the commission of any criminal act are founded upon conflicting testimony, and that being so, the verdict of the jury must be held as controlling. The evidence supporting the conviction as it is revealed by the record may be stated as follows: In June, 1924, Mrs. Keach was lessee of the Coronado apartments in Oakland and owner of the furniture and equipment therein, subject to a chattel mortgage. Desiring to sell her interests, she listed the same with real estate brokers, among them being one Spencer. Appellant was not a licensed real estate broker, but claimed to have been engaged in the business of buying and selling property on his own account. He inspected the Coronado apartments at Spencer’s invitation, but after .such inspection informed Mrs. Keach that he “could not do anything’’ with the property. A few days later, however, he found two prospective purchasers, Chernow and Belan, who examined the apartments in company with appellant and Spencer, but were unable to agree with Mrs. Keach upon terms of sale. They were about to leave, but after holding a brief conference among themselves outside of the house, appellant, accompanied by Spencer, returned into the house and at appellant’s solicitation Mrs. Keach finally agreed to accept $2,500 in cash for her interests, and out of that sum to extinguish the chattel mortgage amounting to $500 and to pay appellant a commission of $300, leaving a net sale price to her of $1,700. Later on the same day, at appellant’s office, Chernow and Belan expressed themselves as being satisfied with the amount of purchase price, but stated that Mrs. Keach’s lease which was about to expire contained an option calling for an extension of only two years, and that they wanted a lease covering a term of four or five years. Appellant replied that he believed such a lease could be obtained. Chernow also stated that he would be unable to pay the full amount of the purchase price in cash, being, short $500, but that he was the owner of a promissory note for $1,875, payable in monthly installments of $25 each, secured by a trust deed to Oakland property, which he was "willing to pledge as security for a loan of $500. Appellant said that, personally he was unable to lend the money, but assured Chernow that the matter could be handled through