People v. Melton

DORAN, J. Defendant, who was charged in an indictment with two counts of the crime of grand theft, was found guilty thereof by a jury.' The appeal herein is from the judgment, and from the order denying defendant’s motion for a new trial.

It appears from the evidence that on June 24, 1937, defendant represented himself to Mrs. Mary C. Hill, complaining witness, as a Mr. Hershfield, a representative of the “World Oil Company” of Port Worth, Texas. He stated to her that he understood she had 1,000 acres of oil land in Chavez County, New Mexico, and that he had been authorized by his company to make an offer on the land; that he would give her a $4,000 cash bonus and a one-eighth royalty on all the oil taken therefrom. Mrs. Hill owned one-half of the property, her sister, Mrs. Laura McGillivray, owned a quarter of the property and a Mr. Clark owned the other quarter. Defendant “took out of his pocket a book that looked like a check book” and offered to write a check for $1,000 at that time, which Mrs. Hill did not accept. She told defendant that she wished to talk to the other two parties before she would do anything. On the following day defendant returned to Mrs. Hill’s home and repeated his offer to her and to Mrs. McGillivray. No payment of $1,000, however, was offered by defendant at this time. He informed them that it would be necessary to obtain a survey of the property before his company would execute the lease; that such survey would cost $500, but that his company would pay one-half of this sum if they were permitted to make the survey, provided the owners of the property would put up the other $250. Mrs. Hill, Mrs. McGillivray and defendant then drove to a bank; • Mi’s. McGillivray withdrew $250 in cash and handed the money to the defendant, who stated that the survey would be sent to them within ten days. This transaction represents count one of the indictment.

Within a few days thereafter Mrs. Hill received a telephone call from someone who made her an offer of $8,000 and a one-eighth royalty. Mrs. Hill testified that defendant called upon her on July 1st, and that she then told him “that we had had an offer of more money for the land and that we didn’t feel that we could afford to let him”have it for that figure, and he said $4,000 was all that his company would [389]allow him to give. And he said, ‘Well, what should we do in regard to the money my company has put up ? My company has already put up $250 for the survey and if they don’t get the land they will be sore at me for not giving you a deposit in the first place and making things more secure. ’ So he said, ‘In that case I can’t blame you an awful lot but I am very much disappointed because my commission would amount to about $400 on this sale. ’ He says, ‘ Of course, I am knocked out of that. ’ He says, ‘.But I will tell you what I will do. If you will give me the $250 to reimburse my company for the money they put up I will give you a receipt releasing you from all obligations with my company,’ . . . ” On the following day defendant repeated the proposition to Mrs. Hill and Mrs. McGillivray, who accepted the offer. At this time defendant received the second sum of $250, which transaction represents count 2 of the indictment.