People v. Albert

FINCH, P. J.

The information contains four separate charges of perjury. The defendant was convicted of the offenses charged in the first and fourth counts. His motion for a new trial was denied and he was sentenced to imprisonment for both offenses, the terms of imprisonment to run concurrently. This appeal is from the judgment and the order denying a new trial. The respondent admits inability to find any corroboration of the testimony of the prosecuting witness in support of the fourth count and a careful search of the record fails to disclose any corroboration thereof.

The first count alleges that in the trial of the defendant, in November, 1926, upon a charge of grand larceny, he falsely testified that he paid certain moneys for certain sweet potatoes. The testimony given in that case shows that the defendant and C. C. Piccanco had entered into an agreement for the sale of the latter’s sweet potatoes to the former, payment to be made for each load thereof as delivered, and that the defendant received eight loads of the potatoes, he hauling them in his own truck from the defendant’s home in Stanislaus County to Oakland or San Francisco. Piccanco testified in that case and in this that the defendant did not pay for any of the potatoes, but that he was induced to deliver all but the last load to the

[776]

defendant, without requiring immediate payment, by certain representations and promises of the latter. As to the potatoes so delivered, it may be conceded that the defendant was not guilty of larceny under the law as it then stood, the owner having intentionally parted with possession and title. (17 R. C. L. 12.) When the defendant appeared for the purpose of getting the last load of potatoes, Piccanco, according to his testimony, demanded immediate’ payment for all the potatoes and it was agreed that, after loading the potatoes on defendant’s truck, the parties would go to the town of Turlock where the load of potatoes would be weighed and payment would be made for all the potatoes. After the potatoes were so loaded and weighed it was agreed that the parties would meet at a certain poolroom, where the defendant would make payment. Piccanco testified: ‘‘ He (defendant) started up with full speed. When I got down to the poolroom he was stepping on the gas. ... He started out as fast as the truck could go through town.” Piccanco followed and overtook the defendant, but the latter refused to make payment. A justifiable inference from the evidence is that Piccanco did not intend to surrender control over the last load of potatoes or to part with title thereto until payment therefor by the defendant and that the defendant was guilty of larceny in taking those potatoes under the circumstances shown by the evidence. In the larceny case the defendant testified that he had paid for all of the potatoes from time to time as they were delivered, except the last load; that the reason he did not pay for that load was “because he (Piccáneo) give me two loads of potatoes, small, black, decayed, and I couldn’t sell them in Oakland, and I want him to pay for those two loads of potatoes before I pay him.”