People v. Rishell

THOMPSON (IRA F.), J.

John D. Rishell, together with his wife, Mabel L. Rishell, was charged in an information with grand theft. The first count was directed against both defendants charging them with the fraudulent appropriation of $10,000. The jury acquitted the defendant Mabel L. Rishell but disagreed as to the defendant John D. Rishell under this count; they returned a verdict of guilty as to the second count which charged that the defendant John D. Rishell alone did unlawfully take $700 in money of the property of the Bay Cities Guaranty Building and Loan Association. It is from the judgment pronounced upon this verdict that the appeal is prosecuted.

The first contention of the appellant is that the evidence is insufficient to support the verdict. The appellant organized the Building and Loan Association and was its president in 1928. Mrs. Rishell was a director and secretary of the company. In November, 1928, the loan association sold a piece of property to the Bank of Italy for the sum of $310,000. Edward B. Conliss was the real estate agent wdio handled the negotiations. He had an oral understanding with Mrs. Rishell and a Mr. Stintin, representing the Bank of Italy, that his commission to be paid by the loan asso

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elation would be $5,000. During the pendency of the escrow the purchasing bank insisted that the taxes be paid by the seller. As a matter of compromise it was ■ finally agreed that Mr. Conliss would pay one-half thereof (which was subsequently fixed at $700) and Mr. Stintin, - presumably for the bank, would take care of the other half. Before the escrow was closed, however, the loan association paid approximately $2,800 taxes on the property. After the sale was consummated and on December 7, 1928, the witness Conliss testified that he went to the appellant for the purpose of collecting his commission; that they discussed the deal; that appellant asked him how much he had coming, to which he replied "$5,000, whereupon appellant said, ‘ ‘ well, how about those taxes ’ ’; that he thereupon told appellant he could deduct the taxes if he wanted to, whereupon appellant checked the records and compromised, as heretofore suggested, on the sum of $700; that appellant then suggested he would give Conliss (the witness) a check for $15,000 and that the latter would give him back a check for $10,700, which arrangement was carried out. The appellant deposited the check in his own account and not in the funds of the loan association. A little more than a year later, to wit, on January 28, 1930, appellant wrote a letter to the loan association inclosing his check for $1400 and interest amounting to $111.06 saying that it was to reimburse the association for the last half of the taxes of the year 1928-29, and that the withholding thereof was unconscious on his part. It should also be added that the assistant secretary of the loan association testified that appellant directed her to make an entry in the books charging the sum of $15,000 to the cost of real estate and building. It does not appear whether appellant was still connected with the company at the time he wrote the letter. A resolution was adopted by the board of directors on November 20, 1928, authorizing the sale of the property to the Bank of Italy for $295,000 net to the association. As to the item of $700 it is asserted by appellant that the proof is not sufficient for the following reasons: