People v. Green

HOUSER, J. Defendant appeals from a judgment which followed his conviction of the crime of grand theft; also from an order by which his motion for a new trial was denied.

Briefly, the pertinent facts adduced on the trial of the action were that a man named O’Conner, who was the driver of an ice wagon, was considering the advisability of his engaging in the operation of a cafe; and in that connection that defendant stated to O’Conner that he thought he could save O’Conner some money on the .purchase of used'fixtures that were deemed necessary for the equipment and furnishing of the cafe;—following which, in pursuance thereof, and for that purpose, in circumstances not necessary herein to be detailed, O’Conner placed the sum of $260 in the hands of defendant. Whereupon defendant induced O’Conner to go to a room in an apartment house that theretofore, for the space of a few hours only, defendant had temporarily rented, and which room he had procured to be specially furnished with a table, a deck of playing cards and intoxicating liquor, at which time and place defendant and O’Conner drank some of such liquor. In about ten minutes after they had thus entered the said room they were joined by a man from whom defendant claimed furnishings for the cafe were to be purchased. Whereupon, on the pretext that the third man had had “a run-in with the missis” and he had “to go over to the house a few minutes”, the said man and defend[656]ant excused themselves to O’Conner with the understanding that they would join him at the room .“within a few minutes”. Omitting other circumstances which might be construed as being suspicious in their nature, it may suffice to state that neither defendant nor his companion ever returned to the place where they had left O’Conner; nor did 0 ’Conner ever see defendant again until twenty-four days thereafter, at which time defendant was placed under arrest charged with the commission of the offense of which he was later convicted. In the meantime, he had purchased no equipment or furnishings for the cafe.

Appellant’s first contention is that the evidence was insufficient to sustain the verdict, in that no demand was ever proved to have been made upon defendant for the return of the money to O’Conner.

In the case of People v. Kirk, 94 Cal. App. 378, 381 [271 Pac. 347], where a similar question was raised, in part the court said: “ . . . The test of the crime of embezzlement is whether the evidence shows clearly a fraudulent appropriation by the defendant of the money; and proof of a demand is not required when the evidence otherwise shows the fact of such fraudulent appropriation. It is only in the absence of such other sufficient proof of a fraudulent appropriation that a demand may be necessary to fix the fact of the fraudulent appropriation; but the test of the crime is not thereby altered, but always is: Does the whole evidence establish the crime charged? (People v. Blair, 19 Cal. App. 688 [127 Pac. 657].) ...” To the same effect, see People v. Dewindt, 67 Cal. App. 220 [227 Pac. 619], People v. Keller, 79 Cal. App. 612 [250 Pac. 585], People v. Hatch, 163 Cal. 368 [125 Pac. 907], and cases therein respectively cited.