People v. Hurwitz

[432]

HOUSER, J.

On count one of an indictment, each of the defendants was convicted of the crime of petty theft, and on count two of the same indictment, each of them was convicted of the crime of grand theft. Although the record herein is somewhat uncertain in some important respects, since no question with reference thereto is raised by either of the parties to the appeal, for the purpose of considering the point presented by appellants their appeal will be treated as though no such uncertainty existed.

As is stated by appellants in their opening brief herein, they “raise only one main issue”, to wit: “that there was no evidence produced at the trial by the prosecution which would establish, or tend to establish, the crime of embezzlement by the said defendants, or either of them”.

Manifestly, it would be impracticable for this court to set forth herein all the evidence adduced on the trial of the action. Somewhat abridged, however, it shows that Brooklyn Knit Sportswear Company, a corporation, had an arrangement with defendant Howard Hurwitz by which the former was to consign, and did consign, to the latter certain merchandise which the latter was authorized to sell for the former and to collect the sales price from the purchasers thereof; which moneys, less an agreed and fixed commission and expense to be paid by the former to the latter, were to be remitted by Howard Hurwitz to said Brooklyn Knit Sportswear Company; that in the conduct of said business, during a period of several years the other defendant, Sam Hurwitz, was engaged with and assisted his brother, Howard. In the month of November, 1932, the business relationship which formerly had thus existed between Howard "and Brooklyn Knit Sportswear Company was terminated; and thereafter, under conditions practically identical with those which theretofore had regulated the relationship existing between Howard and Brooklyn Knit Sportswear Company, Sam continued to transact the business for said corporation. However, at the time when Howard ceased to act as agent for the said corporation he was indebted to it in a sum in excess of $1200, which represented the difference between commissions which theretofore had been earned by him under his contract, and his “drawing account”, expenses, etc. That indebtedness was not liquidated, but was