People v. Lindsay

LANGDON, P. J.

This is an appeal by the defendant from a judgment entered upon a verdict of a jury finding him guilty of embezzlement.

It is contended that the evidence is insufficient to support the verdict in several particulars and also that there is a variance between the information and the proof. At the outset let us state that there are numerous conflicts in the evidence and we shall not concern ourselves with these conflicts, but proceed upon the assumption that the jury resolved all conflicts against the defendant.

The information charged that on or about November 24, 1922, and before July 11, 1923, in the county of Alameda, state of California, the defendant was the clerk, agent, servant, and bailee of Clara Hellesto and Emil Hellesto, her husband, and by virtue of such employment came into possession of the sum of $1,250, the personal property of the said Clara and Emil Hellesto, and that defendant unlawfully

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and fraudulently converted, embezzled, and appropriated said personal property to his own use.

The proof was that the defendant was a real estate agent in Oakland, California, and about June, 1920, sold a house on Miles Avenue in Oakland for Mrs. Hellesto. The purchaser, Mrs. Hayes, made a cash payment of $2,500 on this property, assumed a first mortgage and gave a promissory note for $1,200, secured by a deed of trust to Mrs. Hellesto. In July, 1920-, Mrs. Hellesto purchased another house on Manila Avenue, Oakland. She paid $1,000 down and gave a note secured by a deed of trust for the balance, which note was payable at the Bank of Italy at the rate of $50 a month. Mrs. Hellesto arranged with the defendant to act as her general agent and collect the money upon the Hayes note and the rent from the property on Manila Avenue and to make the payments upon her note at the. Bank of Italy, pay the taxes upon the Manila Avenue property and such other bills as he was authorized' to pay and to pay the balance to her. The defendant received $250 as his commission upon the sale of the property to Mrs. Hayes, which sum was taken out of the initial payment. He also sold the Manila Avenue house to one Van Dyke and later Van Dyke deeded the property back to Mrs. Hellesto and continued to occupy it as a tenant, paying the sum of $1,025 to defendant as the agent of Mrs. Hellesto. Defendant also rented this house to one Cardinet in 1922 for six months at the rate of $75 a month and to a tenant named Genelly for eleven months at $75 a month. The defendant collected money from these various sources for the account of Mrs. Hellesto from July, 1920, to November 24, 1922. In November, 1922, Mrs. Hellesto, not having received an accounting of the proceeds of the Hayes note, asked defendant if Mrs. Hayes had made any more payments upon it. The defendant replied that she had not and asked Mrs. Hellesto to come to his office. She did so on November 24, 1922, and was told that there was then due $542 upon the Hayes note, but that defendant would give Mrs. Hellesto $100 if she needed money and take an assignment of the Hayes note and remit the balance due thereon in monthly payments. At that time the entire amount of the Hayes note had been paid, but Mrs. Hellesto, believing defendant’s statement to the contrary, assigned the note to him, which assignment recited a consideration of $542 paid