People v. Harris

THE COURT.

An information was filed in the Superior Court of the City and County of San Francisco charging the defendant with two offenses, namely, the theft of two sums of money from the Robert Dollar Company, which is a corporation engaged in carrying passengers and freight. He was convicted upon the first charge and acquitted on the second. The appeal is from the judgment of conviction and an order denying a motion for a new trial.

It is contended that the verdict is unsupported; that the conduct of the trial judge was prejudicial to the substantial rights of the defendant, and that the court erred in its rulings upon the admissibility of certain evidence.

The defendant was employed as a cashier in the freight department of the company at San Francisco. It was his duty to accept and account for payments of freight charges from the various shippers. The count in the information upon which he was convicted charged him with the theft of $954.98. The evidence shows that on February 7, 1928, this amount was due the company for freight from S. M. Archbald and so charged upon its books; that on that day Archbald, who had received a statement of account from the company, brought to its office for the purpose of paying the account a cashier’s check for $1,010.92 which had been issued and made payable to him by the American Trust Company of San Francisco. Defendant’s assistant was present at the time, the defendant being temporarily absent. The check was indorsed and presented, but being for more

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than the amount due neither the assistant nor the defendant was authorized to pay the difference to Archbald. It was the duty of both under such circumstances to procure this amount from their superior officers either in cash or in the form of a check payable to the debtor. On this occasion the assistant stamped the statement rendered as paid, but declined to accept the check. While the transaction was in progress the defendant returned and the check was delivered to him. Thereupon, accompanied by Archbald, he went to the Pacific National Bank, whose office was situated on the first floor of the building. The defendant entered the bank while Archbald remained at the door. Shortly thereafter the defendant returned with a sum in cash equal to the difference between the charge and the amount of the check, which upon their return to the office of the company the defendant paid to Archbald, who, according to his testimony, also received at that time the receipted statement. The evidence shows that the defendant did not cause the check to be cashed, but that the same was indorsed by him and deposited to his own account in the bank mentioned. The evidence further discloses that on the same day a check for $1,019.14 payable to the company was received from Mitsui & Co. Inc. in payment of certain freight charges entered against the Southern Pacific Company and Overland Freight Company, but in the payment of which it appears that the maker of the check was interested. The amount of this cheek was entered upon the books of the company in the handwriting of the defendant to the credit of two debit charges against Archbald, one being the charge above referred to for $954.98, the other being for $112.50, and no credit therefor was given either to Mitsui & Co. Inc., the Overland Freight Co. or the Southern Pacific Co. Defendant contends that the discrepancy shown might have been due to errors in bookkeeping, and, further, that it does not appear that the amount paid by Archbald was not received by the company.