People v. Kittrell

HERNDON, J. Appellant was convicted of grand theft under the provision of subdivision 1 of section 487 of the Penal Code “. . . that where the money, labor, real or personal property is taken by a servant, agent or employee from his principal or employer and aggregates two hundred dollars ($200) or more in any 12 consecutive month period, then the same shall constitute grand theft.” His motions to reduce the crime from grand theft to petty theft and for a new trial having been denied, appellant filed his notice of appeal from the order denying the latter motion.

[609]In his opening brief, appellant states: “The entire basis of this appeal is that there is an insufficiency of the evidence to establish Grand Theft; that the evidence establishes nothing more than petty theft. The entire argument in this case will be a factual one rather than a legal one.”

Appellant was employed by the May Company in downtown Los Angeles in the clothing department. The People introduced (1) the testimony of eight witnesses as to their purchases at the store, totaling $286.90; (2) the testimony of the store’s operating superintendent describing the store’s sales and accounting practices and establishing that the money covering the purchases in question had not been received by the store, and (3) the testimony of an examiner of questioned documents who identified the handwriting of appellant on several of the slips involved in the sales transactions testified to by the purchasers. The May Company utilizes a merchandizing scheme by which merchandise coupons are sold in the credit department and used throughout the store as cash. Two of the purchases testified to, totaling $63.98, were paid for with these merchandise coupons.

Appellant do.es not deny that the evidence clearly proves his guilt of petty theft, but he urges that with respect to the transactions in which coupons were used to pay for the merchandise there is a fatal variance between pleading and proof. The information charges that appellant took over $200 “in money.” The only authority cited in support of this argument is People v. Reed, 70 Cal. 529 [11 P. 676], decided in 1886, wherein it was held that an indictment for obtaining under false pretenses a promissory note alleged to have been executed by the person defrauded was not sustained by evidence showing that the note was jointly executed by him and another.

There are two short and sufficient answers to this contention. In the first place, the evidence is sufficient to support a finding that appellant took more than $200 in money even if the coupon transactions are excluded. In the'second place, section 956 of the Penal Code, as amended in 19271, deprives