People v. De Graaff

[677]

TEMPLE, J.

The defendant appeals from a conviction for grand larceny, and the principal question presented here is whether the testimony on the part of the prosecution proved the commission of that offense, or simply tended to prove the offense of obtaining money by means of false and fraudulent pretenses, or embezzlement.

One Healy was desirous of getting an appointment upon the police force of San Francisco. The defendant volunteered to assist Healy, and pretended to have great influence with certain prominent citizens of San Francisco. He mentioned the names of four whom he said were willing to assist, but said they wanted a hundred dollars each. Healy, or rather his wife, gave defendant the money to be used in that way, but defendant agreed, to refund the money if he did not succeed in getting the appointment, and gave his note for the money and promised to have it indorsed by the four influential persons he mentioned. The money was delivered to the defendant for the express purpose of being given by defendant to such four persons, and upon such express promise as to repayment. A few days after Healy parted with his money the defendant stated to Mrs. Healy, with whom most .of the negotiations had been made, that he had paid, the money to such persons. Much more was said and done, but this statement sufficiently shows the nature of the transaction.

The theory of the prosecution is very clearly stated by the learned judge of the trial court in an instruction as follows: “How if, instead of in her bureau drawers, in the supposed case, she, Mrs. Healy, then and there had this money in her hands, and was thereupon induced by tricks and artifice practiced upon her by the defendant, he having at the time in his mind the intent to thereby steal it from her feloniously, was induced to deliver and did deliver it to him for the declared specific purpose of his applying it to the promotion of th'e purpose of her husband to obtain an appointment upon the police force, should an opportunity to so apply it offer, and otherwise to return it to her, she not intending thereby to part with the title to the property, but only to part with its possession, and only for the specific purpose aforesaid; and the defendant received the money from her, and had at the time in his own mind a secret purpose and intent not to so apply it, nor to return it to her in any event, -