People v. Whitlow

DORAN, J. Defendant David L. Whitlow, who was adjudged guilty of the crime of grand theft by the court, a jury having been duly waived, appeals from the judgment of conviction, and from the order denying a motion for a new trial.

Appellant was charged with obtaining $300 from one Ethel McCarthy, on or about March 18, 1939.

Briefly, the evidence reveals that Miss McCarthy, a child nurse by occupation, was working in an employment agency in the early part of the year 1939; she became acquainted at that time with the defendant, who was seeking employment. After they had seen each other daily for about six weeks, they appear to have arrived at an understanding regarding the possibility of prospective marriage. In the early part of March, 1939, Miss McCarthy told the defendant that she was intending to go into an employment agency business, and they discussed the matter of the purchase by her of a one-half interest therein for the defendant, who was still unemployed. Whitlow, however, was interested in purchasing a one-half interest in a gasoline station located at Third Avenue and Venice Boulevard, in Los Angeles, owned by a Mr. C. P. Graham. They drove out one day to the gasoline station, and the defendant talked to Mr. Graham out of Miss McCarthy’s hearing. Two or three days later, on Saturday afternoon, March 18th, Miss McCarthy gave the sum of $300, which she had borrowed from an individual, to Whitlow for the purpose of completing the purchase of his one-half interest in the filling station. Miss McCarthy did not see the defendant until the next day, Sunday, at which time he stated that he was investigating the service station deal further. On Tuesday morning, the defendant told her that he had lost the $300 in gambling on Saturday night, Sunday night and Monday night. Miss McCarthy saw the defendant on one occasion thereafter, at which time he promised to repay the money lost. Some two weeks later Miss McCarthy reported the matter to the district attorney’s office.

At about the same time as the incident above related, namely, on March 22, 1939, the defendant obtained $225 from a Mrs. Ida E. Morse for the asserted purpose of purchasing an interest in a gasoline station, which money was also lost in gambling.

[33]It was claimed by defendant at the trial that the money was obtained from Miss McCarthy as a loan, for which reason it is contended on appeal that the evidence is insufficient to support the judgment. Primarily, it was the function of the trial judge to determine the truth of the defendant’s testimony, in which connection, in all probability, it was no more impressive at the trial than the record reveals it to be on appeal. The evidence was sufficient to sustain the court’s finding of guilt. All of the elements of the crime were fully established.