People v. Lorden

California Court of Appeal Jun 14, 1923 No. Crim. No. 1112.Published

Before: Sturtevant

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Holding. The court affirmed the defendant's conviction for embezzlement, holding that the evidence sufficiently established his partnership in the firm and his unauthorized sale of the victim's stock, and that the trial court properly admitted evidence of similar acts.

Issues

Whether the evidence was sufficient to establish the defendant's status as a partner in the firm.
Whether the trial court erred in admitting evidence of similar acts and transactions.
Whether the trial court erred in its instructions to the jury or in refusing to grant a new trial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In the absence of an objection a fact proved by incompetent testimony is beyond attack on appeal.”

“The court did not commit any error in receiving such testimony.”

STURTEVANT, J.

The defendant has appealed from a judgment of conviction and an order of the trial court denying him a new trial.

He was charged in an information filed by the district attorney with having committed the crime of embezzlement, on the sixth day of March, 1922. Before we take up that particular transaction it should be recited that the complain

[502]

ing witness, Bella Gilmore, in the month of February of that year called at the office of Harrison J. De Vere, manager of the office at San Jose of Aftergood & Company, for the purpose of purchasing corporate securities. On that occasion she purchased through Mr. De Vere ten shares of Studebaker at $95 a share; ten shares of American Tobacco at $131; ten shares of Telephone at $118, and ten shares of Allis Chalmers, at $45, and ten shares of Texas Oil at something like $30. As stated, she bought the stocks on margin and at the time of the purchase she was told by Mr. De Vere that it was necessary for her to furnish collateral. As she did not understand the meaning of the expression collateral, she inquired of Mr. De Vere and he informed her that she could put up other stock which Aftergood & Company would deposit in the bank, borrow money on it, and with the money so borrowed would purchase the other stock. In accordance with that statement, in February the prosecuting witness delivered as collateral to Mr. De Vere a certificate representing Pacific Gas and Electric stock.

On the sixth day of March, 1922, Miss Gilmore again called on Mr. De Vere to purchase other stocks. After having made the purchase at that time she delivered to him certificate number 447, of which she was the owner, representing four shares of the capital stock of Reid Brothers, a corporation. Mr. De Vere said he would forward the certificate number 447 to Aftergood & Company, who would hold the certificate as collateral, and thereupon he gave Miss Gilmore a written receipt for the certificate. After that date Aftergood & Company did not call on Miss Gilmore for any further security, neither did she ever receive back her certificate representing the Reid Brothers stock, nor the certificate representing the Pacific Gas and Electric stock. She testified that she had never received any stock from Aftergood & Company, or anything at all. In her conversations with Mr. De Vere he told her that Aftergood & Company would transact the business, and that when Miss Gilmore came to close out the deal, if there was anything left out of the Reid Brothers stock she would receive the amount He also stated to the witness that if the stock purchased on margin went down that the witness stood in danger of losing her collateral. From the time she purchased until the date of the trial the witness stated that

People v. Lorden

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STURTEVANT, J.

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