People v. Wyatt

CRAIG, J.

The determinative question upon this appeal has recently been decided, and we need not here for the purposes of a ruling thereon discuss the facts involved. Appellant was charged by information with grand theft, the pleading consisting of eight counts or separate alleged offenses. His counsel at the opening of the trial announced that “the defendant consents and requests that the case be tried by the court sitting without a jury,” to which the. district attorney also consented. The defendant did not personally express any consent to a trial by the court or waiver of his right to a jury. The attorney-general confesses error on behalf of the People, and upon the authority of

People

v.

Garcia,

98 Cal. App. 702 [277 PaC. 747], and

People

v.

Spinato,

100 Cal. App. 600 [280 Pac. 691], the judgments and order appealed from must be reversed.

It is further contended by the appellant that he was convicted of grand theft upon the theory that he stole the property in controversy, whereas the evidence tended to show that it was obtained by trick and device, and that the judgments should be reversed upon that ground. It is argued that the complainants signed written instrur ments of conveyance under which they parted with their property, and for which they received certain money as consideration; that if made under misrepresentation and through fraud practiced by the defendant, the contract was voidable, and that a tender and rescission would be necessary to repossession, or they might affirm the contract and sue for damages, in which event no crime would have been committed, for the reason that title had passed. However, the theory of the prosecution, which there is evidence tending to support, was as stated by the trial judge, that the signatures and certain notes secured by trust deeds were obtained by false pretenses as to the purposes of the transactions. According to testimony of the People’s witnesses, and the findings of the court, Wyatt obtained them under the subterfuge that he was securing a loan and required them as collateral security, whereas in fact he intended to and did obtain the notes for the purpose of selling them, and depriving the complainants thereof. Since there was a, substantial conflict in this respect we cannot say as a