People v. Phillips

SHAW, J.

Upon an information filed by the district attorney under the provisions of section 538 of the Penal Code, defendant was convicted of grand larceny. He appeals from the judgment and from an order denying his motion for a new trial.

The acts constituting the offense, as set out in the information, were the sale and transfer, at the town of Brawley, Imperial County, of certain live stock consisting of horses, hogs, and cattle, a description of which and their markings and brands is fully set out therein, all of which live stock was at

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the time subject to a mortgage executed by defendant to one John Cady and by him assigned to the First National Bank of Brawley. The information charges that while said mortgage was in existence defendant “willfully, unlawfully, feloniously and devising and intending to defraud said John Cady and said First National Bank of Brawley, . . . did assign, transfer and sell to the Hauser Packing Company, . . . and to divers persons to affiant unknown, all of said mortgaged property aforesaid, without informing John Cady, . . . the said mortgagee, or . . . the assignee of said mortgagee, of the said sale, and intended sale and transfer of said property, in writing, of the name and place of residence of the party to whom said sale and transfer of said live stock aforesaid was made; and also without informing the said Hauser Packing Company, or any of the other persons to whom said property was sold and transferred as aforesaid, of the existence of said mortgage.”

The chief contention of appellant is that the evidence is insufficient to support the verdict in that it fails to show that he sold, assigned, or transferred any of the property so mortgaged to the Hauser Packing Company, or to any person whomsoever. Having this point in view, we have with great care examined the record. It appears therefrom that defendant, some time prior to the alleged sale which it is claimed occurred the latter part of August, 1914, bought from Cady a portion of the stock described in the information, and to ' secure payment of notes given for the purchase price thereof, executed a chattel mortgage, including therein with the stock purchased certain other stock then owned by him; that at the time of the alleged sale to the Hauser Packing Company defendant owned a large number of cattle other than those included in the mortgage to Cady, a part if not all of which other stock was likewise mortgaged to other persons, the existence of three unsatisfied mortgages being shown whereby defendant had mortgaged other cattle, and it was clearly established that some of the cattle so included in these last mentioned mortgages had been sold by defendant, and likewise shown that he had not given notice to the purchaser, nor to the holder of said mortgages; that in August, at the county of Imperial, he, without giving notice to any one of the existence of the mortgages or'the intended sale, sold a lot of cattle, in number largely exceeding those included in the Cady mort