People v. Miller

CURTIS, J.

The defendant was found guilty of grand larceny upon two counts: One charging him with the larceny of 63 tons of hay of the value of $1,008, the personal property of Sebastian de Costanze, and the other with the larceny of 128 tons of hay of the value of $2,048, the personal property of Tomatis and Pizzo.

The testimony under the first count was that on August 15, 1922, the defendant verbally bought 63 tons of hay from Costanze at $16 per ton, and agreed to pay therefor in cash as soon as the hay was weighed. Immediately thereafter defendant sent trucks to the premises of Costanze and hauled all of the said hay from said premises prior to August 30, 1922. On August 30th Costanze called upon defendant at his office in the city of Los Angeles and requested payment for the hay and was informed by defendant that he could not pay him that day but would pay him

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on the 6th or 7th of September. About September 8th Costanze again called upon defendant at his office. The office -was closed and Constanze then went to the barn of defendant on Aliso Street and later, on the same day, to defendant’s mill at Perry Station near Redondo Beach. Both the bam and the mill were closed and Costanze found neither the defendant nor any other person at either of these places. A few days later he called at defendant’s house and was informed by defendant’s wife that the defendant was -not at home and would not be back until the following Sunday and for him to call again Monday. On Monday Costanze again called to see defendant at his house. He was told by defendant’s wife that the defendant had not yet returned, but would return that night. Costanze did not meet the defendant again and the latter has never paid him anything for said hay.

The testimony under the second count was that on August 19, 1922, by written agreement, defendant purchased of Tomatis and Pizzo 100 tons of hay at $16 per ton. The agreement is silent as to the time of payment. Tomatis and Pizzo both testified that it was to be paid for in cash as soon as the hay was weighed. Defendant removed the hay from the premises of Tomatis arid Pizzo, amounting to 128 tons, about the 21st and 22d of August. Two days later Tomatis and Pizzo called upon the defendant at his place of business on Aliso Street and asked payment for the hay. Defendant replied that he had not yet received the tags showing the weight of the hay and therefore could not pay them, and asked them to return two or three days later. They returned at the appointed time and defendant informed them that they would have to wait until Saturday as the person to whom he had sold the hay had not yet paid him for the hay. They returned on the following Friday and again found the defendant at his place of business. The latter told them that the bookkeeper was sick and he could not make out a check and for them to wait two or three days longer. The next Saturday they returned and found defendant and his bookkeeper in an automobile near defendant’s place of business. Defendant told them that he could not pay them and for them to come back in five or six days. They might have seen him on one occasion