People v. Allen

CONREY, P. J. The evidence produced at the trial of this case, upon which the defendant was convicted of the crime of grand theft, is evidence tending to prove that the crime was committed by embezzlement of trust funds lawfully in possession of the defendant. At the time when, according to the indictment, the crime is charged to have been committed, viz., February 24, 1933, defendant was the administrator of the estate of Sabrina L. B. Farrow, deceased, and had received into his possession money of the estate. The amount of this fund was alleged to be $9,196.72; and if the evidence does not show that the amount with which defendant was thus chargeable at the time was the full sum above stated, at least it does show that the true amount for which he was then chargeable was a sum in excess of '$5,000.

Defendant appeals from the judgment of conviction, and from an order denying his motion for a new trial. His first assignment of error as stated in the opening brief is as follows: “The evidence relating to a minute order of the probate court, and the stenographer’s report of testimony taken before - the probate court and the testimony of the witness, Arthur E. White, as to what took place in certain proceedings in the probate court, and the testimony of Joseph A. Boland regarding an alleged extrajudicial statement or admission of the defendant was highly prejudicial to the defendant, and the court committed grave error in admitting the same into evidence over the objection of the defendant.” ' From the reporter’s transcript herein it appears that on January 31, 1933, in the matter of said Farrow estate the court was making an inquiry concerning the funds in the hands of the administrator Allen. Whether this [655]hearing was upon a citation to the administrator or upon a voluntary and' informal appearance is not shown, but from the court’s minute order of that date it is apparent that the inquiry was made pursuant to section 521 of the Probate Code, which provides that: “Whenever a judge of the court has reason to believe from his own knowledge, or from credible information, that any executor or administrator has wasted, embezzled or mismanaged, or is about to waste or embezzle the property of the estate committed to his charge, . . . he must cite such executor or administrator to appear and show cause why his letters should not be revoked, and may suspend his powers until the matter is investigated.” At the trial in this action it Avas shown that there was no stenographic reporter present at said hearing of January 31st, and for that reason the court at the trial herein received testimony of the witness White concerning said proceedings of January 31st. According to the testimony of White, he questioned the administrator Allen concerning the amount of money with which he was then chargeable, and Mr. Allen stated that he was chargeable for $9,196.72 less some credits which, he claimed, approximately amounted to $3,000; that in answer to further questioning Allen said that he had the money in his possession; that he did not have it in any bank account, and did not think he had to have it in such an account. Finally, Allen said, “I have $5,000 in money”; and exhibited to the court a cashier’s check in the sum of $5,000 payable to W. S. Allen. White then testified that Allen stated that the cashier’s check was money belonging to said estate. “I asked him whether he would deposit that check in a joint control account—that is, an account in his name as administrator of the estate, controlled jointly by the bonding company which I represented, and he said that he would not.” In connection with the testimony of the AAdtness White, the court received in evidence a minute order made by the court at said hearing of January 31st, in which the court said: “Under section 521 of the Probate Code, the powers of the administrator are suspended pending investigation, except that administrator may deposit the funds belonging to said estate in any bank or depository, in a separate account in his name as administrator ; if the administrator so deposits .said fund and agrees to joint control, with his bondsman, such facts will be evi