People v. Lautenschlager

SPENCE, J. Two separate informations were filed against defendant, each charging him with the crime of grand theft. Defendant entered a plea of not guilty to the charge set forth in each information. The two actions were consolidated and were tried before a jury. In action 33697, the jury returned a verdict finding defendant guilty of petit theft. Judgment was entered sentencing defendant to six months in the county jail but the execution of the sentence was suspended. In action 33698, the jury returned a verdict finding defendant guilty of grand theft. Judgment was entered sentencing defendant to San Quentin. In each of said actions, defendant’s motion for a new trial and his motion for probation were denied. Defendant took an appeal in each action from the judgment, from the order denying his motion for new trial and from the order denying his motion for probation. These appeals are presented upon a single transcript and a single set of briefs. As the orders denying defendant’s motions for probation are not appealable orders (People v. Brooks, 140 Cal.App. 480 [35 P.2d 583]), the purported appeals from said orders will be hereinafter dismissed.

[617] Appeal in Action 33698.

In this action, it was charged that on or about July 19, 1940 defendant unlawfully took the property of Lora Grove, consisting of money in the sum of $500. The transaction out of which the charge arose was a loan of $500 in connection with a mining venture of the defendant.

Defendant had known Mrs. Grove for about a year prior to July 19, 1940. Mrs. Grove knew that defendant was interested in mining and she herself had invested several thousand dollars in a mine before she had become acquainted with the defendant. On one occasion defendant had driven Mrs. Grove and her husband on a trip into the mining counties of this state where they looked over some mines. Prior to the making of the $500 loan, Mrs. Grove had made several small loans to defendant. At the time the $500 loan was made defendant was indebted to Mrs. Grove in the sum of about $200.

Mrs. Grove testified that defendant came out to see her regarding the $500 loan in July, 1940; that “He came out there and he said he had a proposition, a mining proposition on hand and he needed $500 to pay for the corporation papers. He had to get those out. . . . He said he had to get those out, and he had to have some money to pay the attorney, and for other corporation business. I don’t know just what that all is, so he said he had to have some money, and I asked him how much he had to have and he said $500. I said I haven’t money, and he said he had some people that were taking over this mine and they were there with money, and I said, ‘Why don’t you wait until they take it over and pay the lawyer then.’ He said, ‘Well you can’t always let people know you haven’t any money.’ He thought the proposition wouldn’t go through if they found that out. He said if I would only let him have $500 for a short time, for a week— he said he would pay me back in a week, anyway; that he would get the proposition over and he would pay me back all that he owed me. . . . He said something about he would give me extra money if I would let him have the money then, because he needed it so badly, and I told him I was not interested in any extra money, only I was interested in getting my own money back. ... Q. Did he tell you how much extra money? A. No, he didn’t say how much. Q. In other words, in the conversation at the house he said he was going to give you back the $500 and all the money he