People v. Kirsch

SHENK, J.

This is an appeal from a judgment of conviction and from an order denying a motion for a new trial. In January, 1927, the defendant was indicted on twelve counts, four for grand larceny, four for obtaining property by false pretenses and four for embezzlement. Four transactions only were involved, .each one of the four being pleaded three ways and charging a different offense. The trial court sustained a demurrer to the four false pretense counts and proceeded to trial on the remaining counts. The defendant was found guilty of grand larceny as charged in count IV, and of petit larceny under the charge contained in count X. The remaining six counts were eliminated by verdicts of not guilty thereon.

The Pacific Telephone and Telegraph Company operates an exchange in the city of San Diego. By contract entered into in January, 1924, with the Western Electric Company, the latter company agreed to act as agent for the Telephone Company in the purchase of supplies and equipment; also to receive and dispose of apparatus or supplies returned to it by the Telephone Company, including material which had no value except as junk. The Electric Company agreed to dispose of this junk material at the best possible advantage and, after deducting a charge for its services, credit the Telephone Company with the net amount received from the sale.

In July, 1926, the Western Electric Company entered into a contract with the Sugarman Iron & Metal Company to sell to the latter scrap or junk material that might accumulate during the period from July 1, 1926, to June 30, 1927, the sales to take place at different localities, including the regular yard and warehouse of the Telephone Company at San Diego. This contract provided that the weight, count, and classification of the material delivered to the purchaser should be made by the seller. The Sugarman company as

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signed its interest in said contract to the Amalgamated Metals Corporation, of which the defendant was an officer and employee. Under the supervision of the defendant, his company did the first hauling of material from the San Diego yard of the Telephone Company. This work was performed from September 27 to November 17, 1926. The transactions of the defendant in connection with the hauling on November 10, 1926, form the basis of the charge and conviction of grand larceny under count IV of the indictment. The evidence showed that on that day an Orndorff truck, driven by one Hammack, went to the yard of the Telephone Company at San Diego under the orders of the defendant; that the defendant was at the yard oh the arrival of the truck and instructed the truck driver as to what material to load; that a very heavy load of lead-covered cable was thereupon placed on the truck; that the truck then proceeded to the public weighmaster’s scales and was weighed by Deputy Weighmaster Matthews; that the defendant was present at the time of the weighing of the truck; that thereupon the truck went to the railroad track where about one-third of the load was unloaded into a box-car; that the defendant then instructed the driver to return to the scales and reweigh the load; that after the reweighing, the balance of the material was unloaded into the box-car; that the certificate covering the second weighing of this load showed approximately ten thousand pounds less than the original weighing; that the second weight certificate was used by the defendant in reporting the weight of the load and the seller was never advised of the first weight, nor was any accounting' made to it of the difference in weight.