People v. Benner

PEEK, J. By an indictment defendant was charged with two separate violations of section 72 of the Penal Code. In Count I he was accused of wilfully making a fraudulent claim for his expenses in transporting one Robert Sellers, a ward of the juvenile court of Del Norte County, from Crescent City to the Preston School of Industry at lone. Count II charged a similar violation of the same section involving a claim for expenses incurred in conveying one Alvery Miner, a ward of said court, to the same institution. Although the record does not show what disposition was made thereof, it does show that defendant moved to set aside the indictment, and also demurred to the same. A trial was had before a jury which found the defendant not guilty of the crime charged in Count I but guilty of the crime charged in Count II. Defendant’s motion for a new trial was denied, and thereafter his application for probation was granted. He now appeals from the judgment entered pursuant to the verdict of the jury, and from the order denying his motion for a new trial.

During all of the times mentioned herein, defendant was the probation officer of Del Norte County. In that capacity he was called upon to drive to Roswell, New Mexico, and there to take into custody one Robert Sellers, a juvenile who had violated his parole. By the terms of the court order defendant was ordered to deliver Sellers to the Preston School. Also, by said order, defendant’s expenses were to be paid by Sellers’ parents, the sum agreed upon between them and defendant being $300, and a check in that amount was given to him. In addition, however, defendant filed a claim in the sum of $75.09 with the state for the expenses incurred by him in transporting Sellers from Crescent City to lone. It is this claim which formed the basis of the first count of the indictment, and on which he was found to be not guilty.

At approximately the same time a second juvenile, Alvery Miner, who was then in Del Norte County, had been committed by the same court to the Preston School. For his necessary expenses in transporting Miner from Crescent City to the institution, defendant also filed a claim with the state in an identical amount, $75.09. This claim formed the basis of the second count of the indictment on which he was found guilty and which in substance charged as follows:

. . . Said claim was false, and fraudulent as said Howard J. Benner well knew, in that the said Howard J. Benner claimed that he had conveyed the said Alvery Miner [69]from said Del Norte County to said Preston School of Industry on or about the 15th day of September 1951, and that he, the said Howard J. Benner, returned on September 16, 1951 to the County of Del Norte after the delivery of said Alvery Miner to said Preston School of Industry, when in truth and in fact said Howard J. Benner did not return from said Preston School of Industry to said County of Del Norte on the 16th day of September 1951, and did proceed from said Preston School of Industry to Boswell, New Mexico.”