People v. Swanson

DRAPER, J. Upon jury verdict finding defendants guilty of grand theft (Pen. Code, §§ 484, 487) judgment ordering imprisonment was entered against each, but execution of sentence was suspended and each was admitted to probation on condition he pay a substantial fine. Both appealed from the judgment, and Swanson appeals also from an order denying his motion for new trial. The prosecution concedes that it relies upon its showing of embezzlement to sustain the judgment.

Swanson was the business manager and Vandewark the treasurer of Operating Engineers Local Number 3, a union having jurisdiction in a substantial part of western United States.

In late February or early March, 1956, Swanson discussed with a salesman for a Salt Lake City automobile dealer the purchase of some automobiles for the union at a price of about $2,600 each. Shortly thereafter, Vandewark took up the negotiations and was given a price of $2,637 for each of seven cars to be purchased by the union. Carbon copies of order slips, showing this price, were given by the salesman to Vandewark. Vandewark discussed with the salesman purchase of a car for himself, but no price was then fixed. Later, the union agent in Salt Lake City telephoned Swanson that the price of each of the seven ears for the union would be $2,637. At about the [426]same time, the agent told either Swanson or Vandewark that the cost of Vandewark's car would be $2,477.

On March 12, Swanson told the union bookkeeper to draw a check for the ears. There is testimony that Swanson specified the sum of $21,000. Check for that amount was drawn, payable to cash, and was signed by both defendants as well as by the recording secretary. Swanson testified that he then directed Vandewark to take the check “and make out two checks, one for your car, and one for the Engineers’ cars, so we can keep the record straight.” Vandewark took the check payable to cash, endorsed it at a bank and used it to purchase two cashier’s checks, one for $18,459 (seven times $2,637), and one for $2,477. Both cashier’s checks were payable to the Salt Lake City automobile dealer. (The $64 by which the $21,000 check exceeds the total of the two cashier’s checks is but little discussed in the transcript, and is not material here.) No supporting voucher accompanied the check, although the custom was that a voucher or bill accompanied each check when it was circulated for signature.

Swanson then signed a letter, on union stationery, to the automobile dealer, enclosing the two checks and specifying their amounts. The letter gave delivery orders for each of eight cars, and as to that to be delivered to Vandewark stated “this is his own personal ear.” Title to that car was issued in Vandewark’s name, and the union never was reimbursed for its cost.