People v. Ballard

LANGDON, P. J.

This is an appeal hy the defendant from a judgment convicting him of a felony, to wit, obtaining money by false pretenses. The record presents the following facts, which appellant contends' are insufficient to sustain the verdict of guilty:

About April, 1922, defendant met the complaining witness, Johnsen, upon a ferry-boat traveling between San Francisco and Oakland. Johnsen was a deck-hand and defendant was a passenger on the boat. Defendant engaged Johnsen in conversation and inquired if he had any money. Johnsen said he had about $2,000 in the bank and was getting four per cent interest upon it. Defendant told him that he, Johnsen, was getting too old to work such long hours and said: “I can make it better for you than that, and if you come to my office for every dollar you invest, I guarantee next October you will have to work no more. Johnsen said he couldn’t come to defendant’s office because he had no leisure time. Defendant inquired where he lived and was given the address. The following day defendant called at Johnson’s home and said: “Mr. John-sen you come down; we are having a stockholders’ meeting today. Tou dig up a thousand dollars and by October

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you will have $5 for every one you invest.” Johnsen replied that he could not come and defendant said: “Three o’clock is the stockholder’s’ meeting; got to have the money in by that time.” Johnsen, thereupon, went to the bank with defendant in defendant’s automobile and withdrew $1,000 and gave it to defendant. The next day Johnsen received through the mail a receipt reading as follows: “I hereby subscribe the sum of one thousand dollars for preliminary purposes to be used as such in the Lafayette Oil & Gas Company now organizing; such sum to participate in the development fund as an investment to share

pro rata

in all profits and dividends which may accrue hereafter from the actual organization of said corporation. Signed this 22nd day of April, 1922. H. A. Johnsen. I, Howard W. Ballard, have this day received of H. A. John-sen the sum of one thousand dollars to be used for the purposes stated above. Howard W. Ballard.”

About May 11, 1922, defendant again called at Johnson’s home and said he wanted $300 more, explaining: “We are taking up 300 acres more of land. All the rest of the stockholders are willing to do it and you must follow up. By October 1st, you will have lots of money. You will have five or six dollars to every one you invest.” Mrs. Johnsen, who was a woman over eighty years of age, hearing this conversation, expressed her doubt of the outcome of the investment and began to cry. Defendant said: “Don’t think that of me. By October 11, you will have lots of money and you will have a limousine and Harry will drive you around, Mrs. Johnsen.” Johnsen demurred, but finally yielded to defendant’s persuasion and went to the bank and withdrew $300, which he gave to defendant and for which he received a receipt similar to the one hereinbefore set forth. At this time defendant stated that the company was formed and they were having stockholders’ meetings and it was called the Lafayette Oil Company. Johnsen heard nothing more from defendant until about September 11th, when defendant called at Johnsen’s home about 6 or 7 o’clock in the morning. Johnsen testified that defendant said: “I come here to tell you we took out 300 more acres of land, adjoining land, and all the rest of the stockholders is in for it again and I want $300.” Johnsen said he didn’t have $300 to give to defendant and defend