People v. Rose

CRAIG, J.

The information in this case consisted of two counts, respectively charging that the defendant committed the crime of grand larceny, in that he unlawfully stole, took, and carried away the sum of $475, lawful money of the United States, belonging to a Mrs. Clara Reich; and that at the same time he embezzled said sum of money.

Motion was made that the district attorney be required to elect upon which count the prosecution would be based, on the ground that each negatived the other, and that inasmuch as the defendant could not have committed both offenses by the same act, the jury should not be compelled or permitted to convict upon both counts, or to make the election. There was some controversy as to when the defendant formed the intent to convert the money to his own use, and if he did so intend, and the trial court denied the motion upon the ground that the jury should decide whether he intended to obtain the money without giving consideration therefor, or legitimately obtained the same and thereafter converted it to his own use, should the evidence warrant a conviction upon either count.

' Section 954 of the Penal Code provides that an indictment or information may charge two or more different offenses connected together in their commission, or different statements of the same offense, under separate counts, and that

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the prosecution is not required to elect between the different offenses or counts, though the court may in its discretion require that they be tried separately. The jury were instructed, at appellant’s request, that the defendant could not be convicted upon both counts, and that if they believed him guilty at all, they should convict him on but one count. From the nature of the evidence, as will hereinafter appear, it was a serious question of fact as to whether appellant at first conscientiously interested the prosecuting witness in the transaction, or did so with intent to defraud her, and the citation of authority requiring the submission of all questions of fact to the jury is not necessary. Since the jury found him guilty of embezzlement, and by separate verdict acquitted him of the charge of grand larceny, we see no merit in appellant’s assertion that error was committed in denying his motion.

It is contended that the verdict is contrary to the evidence. It appears that appellant agreed that three lots in a tract known as the Val Halla Memorial Park, in Los Angeles County, should be sold to Mrs. Reich; that between the twentieth day of December, 1923, and the twenty-seventh day of March, 1924, she paid him various amounts of money aggregating $375; that on several occasions she asked for a contract, hut was at each time informed by appellant that she was not entitled to one until she had paid him more money; Mrs. Reich finally consulted an attorney, who called appellant to his office, and after various consultations her counsel advised her to cease paying. Appellant was taken to the district attorney’s office, and, after making a statement, was arrested.