People v. Bianchi

TYLER, P. J.

Defendants were charged with conspiring and confederating together unlawfully for the purpose of cheating and defrauding by false pretenses. The indictment was in two counts. The jury rendered a verdict of guilty

[580]

as to both counts and against both defendants. This is an appeal from the judgment and the order denying their motion for a new trial.

The first count charges the defendants with having conspired together to cheat and defraud the Bank of Italy, a corporation, of a certain promissory note in the principal sum of six thousand (6,000) dollars, signed by Bianchi Shoe Company, a corporation.

The second count charges the same defendants with having conspired to cheat and defraud said bank out of property owned by it, consisting of a certain claim and debt against defendant Del Prete.

It appears from the evidence that in the early part of the year 1918 defendant Bianchi was conducting a small shoe store on Eighteenth Street, San Francisco. About this time he entered into a partnership with defendant Del Prete, who was his brother-in-law, for the purpose of conducting the business of wholesaling boots, shoes, and leather findings, under the partnership name of It. Bianchi & Company. Their place of business was in the Montgomery Block, San Francisco. Their capital amounted to a sum less than ten thousand (10,000) dollars. In addition thereto, each defendant owned a small parcel of mortgaged land. Through the years 1918 and 1919 their business was conducted on a conservative scale, each partner withdrawing therefrom about thirty dollars per week. During this time they had become indebted to the Bank of Italy in the sum of six thousand (6,000) dollars, and in connection therewith had presented to the bank on December 19, 1919, a statement of their assets and liabilities. This statement showed their total liquid assets to be $61,145.61, the net assets $54,191.61, and current liabilities $6,850. Beginning with the year 1920, and at the time it is claimed defendants agreed upon a plan to loot their business and defraud their creditors, their conduct in relation to the conservative management of the business underwent a change. Commencing with January, up to the thirteenth day of February, each partner withdrew three thousand (3,000) dollars from the business. They then caused to be filed a notice of sale of defendant Del Prete’s interest therein to Bianchi, and such sale was noticed to take place on February 14, 1920. On this date the two defendants went to the Bank of Italy and there interviewed its