People v. Brennan

STURTEVANT, J. The defendant was charged with the crime of grand theft. (Pen. Code, sec. 484.) The charge was contained in an information filed by the district attorney. The defendant entered a plea of not guilty. The jury returned a verdict against him. He made a motion for a new trial. The motion was denied. He has appealed from the judgment and from the order denying him a new trial.

It was the theory of the district attorney that the defendant represented to the prosecuting witness, E. Werner, that the defendant owned some race horses that had been attached for a feed bill amounting to $300, and that if the bill was not paid said horses would be sold and he would lose them; that for the purpose of paying said feed bill he desired to borrow $300; that acting on such representation E. Werner loaned defendant the sum of $300; that in truth and in fact defendant did not owe a feed bill on any horses; and that the money has never been repaid.

The defendant asserts that the specific charge against him was, as shown above, the offense of obtaining money under false pretenses. But continuing, the defendant further asserts the prosecution introduced no testimony which corroborated the testimony of the complaining witness and that such corroboration was essential to sustain the judgment. (People v. Edwards, 133 Cal. App. 335 [24 Pac. (2d) 183], and People v. Carter, 131 Cal. App. 177 [21 Pac. (2d) 129].) The Attorney-General does not question the rule but he calls [145]to our attention certain facts which he claims show the offense complained of was that of obtaining money by trick and device (Pen. Code, see. 332) and therefore the rule is not applicable to the instant case. Werner testified that he and Brennan met at Bay Meadows during the meeting in the spring of 1939. Werner was an elderly man seventy-eight years of age. Brennan was about forty-four. From the day they first met Brennan and Werner commenced to talk horses and racing. Brennan told Werner much about the various horses and induced the latter to make certain bets. The two met frequently at Bay Meadows and afterwards at Santa Anita. While at Bay Meadows Brennan told Werner of a scheme he had to make a winning. A horse known as Unparallel was on the track. Brennan said he knew of another horse which the witnesses speak of as the “ringer”. That horse Brennan stated looked so much like Unparallel that many could not tell one from the other. Brennan stated it was his plan, when the meeting was held at the Hollywood track, to substitute the “ringer” for Unparallel and that the “ringer” would certainly win large sums. Werner gave Brennan $1500 to bet on the “ringer”, which Brennan claimed was stabled near by the Santa Anita race track. Difficulties arose in carrying the plan into execution. Many delays followed. Werner says the “ringer” was never run and he never got his money back. The defendant claims the bet was to be placed on Unparallel, that it was so placed, the horse was disqualified, and the money was lost. But he also testified the bet was oral and he produced not even a coupon as evidence of the bet. In the month of October, while the parties were still waiting for the “ringer” to be run and the $1500 to be bet on him, defendant and one Wagner called on Werner and asked the latter for $300 to pay the feed bill against some horses. While there are conflicts in the testimony it must be conceded there is some evidence to the effect that Brennan represented the “ringer” was one of those horses whose feed bill had not been paid. There was evidence neither Wagner nor Brennan owned any horses and that neither owed a feed bill on any horses. Therefore the possession of the $300 was not obtained honestly. Similar principles were before the court in People v. Sichofsky, 58 Cal. App. 257 [208 Pac. 340]. At page 263 the court said: “But as it is, the possession of the money of each complaining witness was obtained through fraud and deceit. It therefore