People v. Breyer

THE COURT. The defendant was charged in an indictment with grand theft and a violation of section 532 of the Penal Code.

The first count alleged that he unlawfully took the property of the Bank of America, etc., a corporation, of the value of $9,500; and the second, that for the purpose of obtaining loans from said bank he knowingly, falsely and fraudulently, with the intent to deceive and defraud, pre[549]sented a written financial statement to^the bank, which he represented to be true and to truly show the financial condition of a firm of which he was a member, and that the same falsely represented that the firm had certain cash on hand, cash receivable and merchandise, and that he and his partner in said firm carried certain life insurance; further, that the bank, relying thereon and being thereby deceived, loaned certain sums to the firm, and as a consequence was defrauded. The two counts were based on the same transaction. Defendant was convicted on both counts, and has appealed from the judgment of conviction.

It is admitted that in addition to the above amount the defendant by similar fraudulent representations had previously obtained large sums from the bank, and at the time of the transaction in question owed the bank on that account over $50,000. That gross fraud was perpetrated is not disputed, but defendant urges as grounds for reversal that the facts show but one offense, and that a judgment and conviction on both counts cannot stand; further, that the judgment on the second count, which was based on section 532 of the Penal Code, is void because of the repeal of said section (People v. Carter, 131 Cal. App. 177 [21 Pac. (2d) 129]); that neither count alleged more than facts sufficient to constitute a misdemeanor under section 532a of the Penal Code, and that the evidence is insufficient to support a conviction under either section 484 or section 532 of that code. It is further claimed that the trial court erred in certain of its rulings.

The attorney-general is in accord with defendant’s first contention, and agrees that the facts supporting that count being identical with those set forth in the first count the judgment upon the second count should be reversed.

With respect to the first count, the defendant contends that said sections 484 and 532', which make false pretenses punishable as a felony, deal with the subject in general terms, while section 532a, making an offense thereunder a misdemeanor, deals with the subject in a more special and definite way, that consequently eases within the latter section should be excepted from the general provisions of sections 484 and 532, and that such an offender is not punishable under either of the latter sections.