People v. Fisher

GRAY, J.,

pro tem.

Appellant was convicted upon ten counts of an indictment, each charging a separate -crime of grand theft. His motion for a new trial was granted as to the first nine counts, but was denied as to the last. This tenth count accused appellant of the crime of grand theft by charging that on June 11, 1930, he unlawfully took the sum of $260, the property of the complaining witness. From the order denying a new trial and the judgment im

[245]

posing sentence upon this count, appellant appeals, urging as grounds for reversal: (1) The insufficiency of the evidence to establish the commission of the crime formerly designated as obtaining money by false pretenses, (2) the lack of corroboration of the alleged false pretense, (3) the court’s error in denying his motion to strike from the record all of the testimony of the complaining witness because the latter in testifying used notes made subsequent to the events recorded and (4) misconduct of the district attorney in allowing such witness to so testify.

No attempt will be here made to detail the entire transaction between the parties covering a period of over six months and involving approximately $9,000 of complainant’s money. Nor is it necessary to discuss several theories advanced by respondent upon which the judgment might be affirmed. But our attention will be confined solely to a consideration of the errors alleged by appellant, with a recital of only such evidence as is necessary to understand his contentions. Although there is merit in respondent’s claim that the testimony would support a contrary finding by the jury, the correctness of appellant’s statement, that he truthfully represented to complainant that he owned a valid and subsisting option to purchase a lease of oil and gas rights in certain Montana lands, will be conceded for present purposes. Appellant does not question that the evidence establishes the receipt by him from complainant of the sum of $260.

In support of his first claim of error, appellant argues: (1) That the hereinafter quoted testimony contains the only representation upon which the count could be based and, (2) that such representation, being that he would ship a barrel of oil, was merely a promise to perform a future act, which legally is not a false pretense. But his first premise is incorrect because complainant, in a prior part of his testimony, testified that appellant had previously stated he was negotiating for the sale of the lease through Mr. Gil-man to the Puget Sound Light and Power Company. The falsity of this representation was proven by Gilman’s testimony denying such negotiations. It is unnecessary to prove all of the false representations claimed, provided that enough are proven to convince the jury that those shown were material in inducing the complainant to part