People v. Robertson

BARNARD, P. J.

The defendant was accused, in an information filed by the district attorney of Imperial County, of the crime of “Grand Theft, in that on or about the 1st day of November, 1930, in the County of Imperial, State of California, the said Frank Robertson unlawfully took the property of one J. C. Poe, consisting of nine hundred domestic fowls of the value of 11125.00.” He was tried by the court sitting without a jury, found guilty and sentenced to imprisonment in the penitentiary. This appeal is from the judgment and from an order denying a new trial.

It appears from the evidence that about the middle of October, 1930, Paul Robertson, a brother of the appellant, was engaged in the business of buying and shipping chickens in the city of North Hollywood and the appellant, as agent for his brother, was engaged in buying chickens in Imperial County. Taking the evidence most favorable to the respondent, it appears that on October 15, 1930, the appellant, as the agent of his brother, entered into a contract with the complaining witness, J. C. Poe, wherein he agreed to purchase from Mr. Poe 2,000 chickens, with the privilege of culling 200, making a net of 1800 chickens at 85 cents

[3]

per head. The appellant had authority to sign checks on his brother’s bank account to cover the purchase of chickens in Imperial County, and at the time of this purchase he gave such a check to Poe for $300' on account of the purchase price, agreeing to take delivery of the chickens within a few days. Some ten days later, the chickens not yet having been delivered, Poe went to the home of the appellant in El Centro and received an additional payment of $200 on the deal. On or about October 25, 1930, the appellant went to Poe’s ranch for the purpose of taking delivery of part of the chickens. While there is a sharp conflict in the testimony as to what occurred on this occasion, Poe testified that the appellant desired to change the deal and take the best half of the chickens at 95 cents a head, which he refused. No chickens were taken on that day. On November 1, 1930, the appellant returned to Poe’s ranch, stated that he had come after the chickens, that he desired to take the larger ones first and that he would come after the others in a few days. Poe agreed to this provided the feed bill would be paid and assisted the appellant in loading 900 of the chickens. Appellant then gave Poe a check on his brother’s bank account for $628, this being for 900 chickens at 85 cents, less $200, the second payment theretofore made, plus $63 for cost of feed. It further appears that on November 3, 1930, another employee of P. E. Robertson arrived in North Hollywood with another load of chickens. This employee having told him about the Poe deal, P. E. Robertson called the appellant on the telephone and asked what the facts were. During this conversation P. E. Robertson told the appellant that he intended to see his attorney about stopping payment on this $628 check inasmuch as Poe had not lived up to his contract, and told his brother to come to Los Angeles. After consulting his attorney, P. E. Robertson stopped payment on the check and at the same time issued another check payable to Poe for $278. On the same day, on his instructions, his attorney sent this check to Poe with a letter explaining that since Poe had breached his agreement to sell them 3,000 chickens, they had decided to pay him for 900 chickens actually delivered, instead of holding him to the contract, and that this check, together with the $500 already paid, would cover the 900 chickens delivered at 85 cents each, plus $13 for feed. On November