People v. Dunnavant

SHINN, P. J. Defendant Perry L. Dunnavant was charged by information with two offenses of grand theft, namely, the theft of $825 and the sum of $296 in money, the property of Paradise Pools, a corporation. In a jury trial he was convicted of the theft of $296 under Count II; the jury disagreed as to Count I and the same was dismissed on motion. Defendant was sentenced to six months in the county jail and he appeals.

In the early part of April 1953, defendant Dunnavant, Lee Paul Haight and Richard Pritchard formed a partnership to engage in the business of installing swimming pools. Defendant was to be manager of the business. Each party was to draw $100 per month and was to receive in addition one-third of the profits of the business. Haight was to advance $5,000 which was to be repaid before any profits were divided. He opened a bank account in his own name by a deposit of $2,962 and he alone was authorized to draw [831]checks on the account. Admittedly this money was advanced to the partnership for use in the business. Checks were drawn on the account and on April 29, 1953, the balance had been reduced to $2,736.84. Between April 17, 1953, and July 1, 1953, the operations showed a net profit of $4,817.30 and the obligation to Haight had been reduced to $2,016.23. Haight had followed a practice of signing checks in blank which were filled in and used in the business as needed. A Miss Hammack kept the books and records of the business. August 3, defendant procured a check from Miss Hammack for $825 and with it procured a cashier’s check for $818. He told Miss Hammack that he intended to use the amount to pay off a mortgage on his home. August 6 Miss Hammack made out a check payable to George Myers for $296 in payment for work done on a swimming pool which defendant was having constructed at his home. Defendant testified that he had Haight’s permission to withdraw the $825, which Haight denied. The disagreement of the jury with respect to Count I which involved the $825 check would indicate that at least some of the jurors were of the belief that Haight had authorized defendant to withdraw and use that sum. It is conceded that the jury was instructed to the effect that if the sums involved in the charges were money of the partnership defendant’s use thereof would not have amounted to theft. Upon the other hand, if it was found that the money belonged to the corporation there was ample evidence to sustain the charges with respect to both checks since Haight had testified that he did not authorize the withdrawal of either sum. The evidence as to the ownership of the funds was subject to different inferences. It is not questioned that a partnership existed in the beginning and the sum first deposited in the account by Haight had been loaned and belonged to the partnership. He had deposited the money subject to withdrawal upon his own checks. April 29, pursuant to previous arrangement, the partners caused to be filed articles of incorporation of Paradise Pools, Inc. On the same date Haight signed a new bank signature card under the name “Paradise Pools, Inc.” with himself as the only person authorized to sign checks. Thereafter business income was deposited in the account to the extent of $67,000. The operating expenses of the business had been paid from the account.