People v. Bullock

California Court of Appeal Jun 27, 1928 No. Docket No. 1037.Published

Before: Plummer

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Holding. The court held that money paid to a contractor as an advance on a building contract becomes the contractor's property rather than money held in trust, meaning the contractor cannot be guilty of embezzlement under Penal Code section 506.

Issues

Whether funds paid to a contractor as an advance on a building contract are held in trust for the payment of laborers and materialmen.
Whether a contractor's failure to use advance payments for specific project expenses constitutes embezzlement under Penal Code section 506.

Disposition. reversed

Quotations verified verbatim against the opinion

“the property alleged to have been embezzled was paid to the defendant under and by virtue of the building contract entered into between the defendant and said Myers, and that the money received by him was not received in trust”

“the checks delivered to the appellant were delivered to him as advances upon the contract, and became his property, and were not received by the defendant in any trust capacity.”

[786]

PLUMMER, J.

The appellant was convicted upon an information based upon section 506 of the Penal Code, and appeals from the judgment based thereon, and also from the order of the court denying his motion for a new trial.

The information upon which the defendant was arraigned contained three counts. A verdict of not guilty was rendered upon counts I and II, and a verdict of guilty upon count III, which reads as follows:

“That said W. B. Bullock, on or about the 17th day of September, at and in the County of Tehama, State of California, and prior to the filing of this information, he then and there being a contractor employed by Jerry Myers and Alice P. Myers to construct and remodel a certain dwelling house there situate, was then and there entrusted with, and there was paid to him by said Jerry Myers and Alice P. Myers, the sum of $250.00 in lawful money of the United States, for the payment of materialmen and laborers, for work performed and material furnished in the performance of his said contract for the construction and remodeling of the said dwelling house; and that the said defendant, after being entrusted with the said sum of money as aforesaid, did thereafter, on or about the 14th day of October, 1927, wilfully, unlawfully, fraudulently and feloniously, appropriate and convert to his own use and embezzle the said sum of $250.00 paid to him as aforesaid.

“Contrary to the form, force and effect of the Statute in such cases made and provided, and against the peace and dignity of the People of the State of California.”

The record shows that on or about the eighth day of September, 1927, the appellant entered into a building agreement with one Alice E. Myers for the rebuilding and remodeling of a small dwelling-house in the town of Corning, county of Tehama; that for and in consideration of the sum of $2,500 to be paid therefor, the appellant agreed to furnish all the material and supply all the work and labor to be performed thereon, at his own proper cost and expense. The contract provided for progressive payments.

Upon this appeal it is urged that every legal question involved herein was passed upon and decided in favor of the appellant in the case of

People v. Bullock

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PLUMMER, J.

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