People v. Abbott

California Court of Appeal May 19, 1933 No. Docket No. 2332.Published

Before: Stephens

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Holding. The court affirmed an order granting a new trial because the trial court and counsel erroneously limited the jury's consideration to the embezzlement of money, thereby depriving the defendant of a proper trial and motion for a new trial on other potential charges supported by the evidence.

Issues

Whether an order granting a new trial should be reversed when the trial court and counsel erroneously limited the scope of the jury's consideration to a single theory of the case.
Whether the appellate court should uphold a conviction based on theories not presented to the jury by the trial court's instructions.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The defendant is entitled to a jury trial on all offenses charged against him before being punished for them and we should not take the chance of depriving him of such right upon unreasonable and strained constructions and presumptions.”

“The order granting the motion for a new trial is affirmed.”

STEPHENS, J.

Defendant (respondent here) was charged with grand theft, a felony, and a jury found him guilty. A new trial was granted after motion therefor and the People appeal.

The case is not free from difficulties. The defendant made some kind of a deal with one John G. Anderson, an old and illiterate man, whereby certain valuable certificates were indorsed to defendant and a promissory note for their face value was given to Anderson by defendant. Anderson testified that he turned the certificates over to defendant for collection and that the note was for the purpose of a receipt. Defendant says the transaction was in the nature of a loan. This produced a sharp conflict in the evidence. After indorsement of the certificates to defendant, he sold them and kept the proceeds. He was charged with grand theft before the due date of the note.

[111]

The jury was properly instructed that the charged crime included larceny, embezzlement or obtaining property by means of false or fraudulent representations or pretenses, or by larceny by trick and device.

After carefully reviewing the whole evidence and not only the parts thereof pointed out in the briefs, we have concluded that there was evidence sufficient to sustain (as against a direct appeal) the offense of embezzlement or of larceny by trick and device-. But we find the court instructing the jury that the evidence is not sufficient to support a conviction on larceny by trick and device, and after instructing the jury that they could consider embezzlement only we find the court granting a new trial after verdict of guilty had been returned. From the wording of the instruction and from several statements of the court made during the trial, it is quite evident that this instruction and most probably the order for new trial were based upon the mistaken theory that the term “money” in the information does not embrace other property of valuable nature. Under section 956 of the Penal Code, amended in 1927, it is provided, in effect, that if the information covers the act so that after trial thereon future trials would be barred, no variance results from misdescription of property stolen or from the naming of the wrong owner.

(People

People v. Abbott

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STEPHENS, J.

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