People v. Mauritzen

McFarland, J. The defendant was convicted under section 532 of the Penal Code of the crime of obtaining three horses from one G. W. Hill by false and fraudulent pretenses. The false pretense alleged was representing to said Hill that the defendant had four hundred dollars on deposit in a certain bank in Napa City when the horses were purchased by defendant of Hill. The evidence is undisputed that, while defendant stated that he had the four hundred dollars in bank, he also told Hill that he did not want to use that money; that Hill must give him a week’s time to pay for the horses; that he would take the horses to San Francisco and sell them, and wanted to make the turn and get the money from the sale at the latter place to pay Hill. Thereupon he paid Hill twenty dollars in cash, and gave him his (defendant’s) note for the balance of the purchase-money, — $380,— payable in a week. Defendant then took the horses to San Francisco. As Gardiner, one of the witnesses for the prosecution, and one of the owners of the horses, testified, defendant was to pay for the horses out of the money derived from the sale of the horses, and was to have one week's time in which to sell the horses and pay for the same." This was on the 17th of June, 1889; but on June 20th, — before one half of the week had expired, [39]— defendant was arrested at San Francisco on this present charge. He still had the horses, and when arrested gave them back to Hill, and also gave him his note for Hill’s expenses in taking the horses back to Napa City.

This evidence makes a very slender case of the crime charged, at best; and we think that the court misled the jury in answer to their inquiry about the note given by defendant to Hill on the purchase of the horses. The court had correctly instructed the jury that “if said Hill sold horses on credit, and took a note for the same, and relied on the sale of the horses by defendant for his pay, you should find the defendant not guilty, although he may have falsely told the said Hill that he had four hundred dollars in the bank of Seely & Bickford.” But after the jury had retired, they returned into court, “ and through their foreman asked the court if the note given by the defendant to Hill for the purchase of the horses was in evidence before them. The court replied that the note was not in evidence before them.” This was clearly error; for the giving of the note and its contents were distinctly proven by the witnesses, without objection, and was as much in evidence before the jury as if it had been proven by the production of the written instrument itself. And that the error was material is self-evident, without even considering the fact that the jury specially made inquiry on the subject.