People v. Alkow, Cr. 4423

• Decision Date: 26 May 1950
• Docket Number: Cr. 4423
• Citation: 218 P.2d 607,97 Cal.App.2d 797
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. ALKOW.

Page 607

218 P.2d 607

97 Cal.App.2d 797

PEOPLE v. ALKOW.

Cr. 4423.

District Court of Appeal, Second District, Division 3, California.

May 26, 1950.

Harry Alkow, Los Angeles, in pro. per.

Fred N. Howser, Attorney General, Donald D. Stoker, Deputy Attorney General, for respondent.

SHINN, Presiding Justice.

Harry Alkow was convicted in a jury trial of the theft of $200 from Ted Watry. He was sentenced to State prison, execution of the sentence was suspended, he was placed on probation for seven years, one of the conditions being that he serve a year in the County jail. He appeals from the judgment and from an order denying his motion for a new trial. The only ground of appeal that requires decision is that the evidence was legally insufficient to prove the commission of the offense.

Nick Harris Finance Exchange was a corporation, licensed by the state as a collection agency. It had been owned and operated by Nick Harris prior to his death in 1943. His widow succeeded to the business and caused the corporation to be formed. There was testimony that a Mrs. Lux owned 50% of the capital stock and that Mrs. Harris also was a stockholder. One Thomas Morgan was connected with the company and had acted for the company in obtaining the state license. He was its managing director, but it does not appear that he had any special duties for the company, although he appeared at the company office several times each week and was paid by defendant $25 or $35 per month for the use of his name. Upon a signature card with the Security-First National Bank of Los Angeles executed September 11, 1949, Morgan was listed as president, and Anne F. Scherrei, as secretary. Either of these two, with defendant, could draw checks upon the company's bank account. One account was carried with the Security and another with the California Bank, also in Los Angeles. It appears also that defendant had an account with the Citizens National Trust & Savings Bank, as trustee for the company. Defendant had been attorney for Nick Harris for many years and continued to act as attorney for the corporation after it was formed. His name was listed on the security Bank signature card as attorney.

On or about May 23, 1948, Ted Watry delivered to defendant the promissory note of Lois and James Daly upon which there remained unpaid to Watry $2,026. Defendant received the note at the office of the company which was also his law office, representing himself to Watry to be 'Mr. Brown.' He accepted the note for the corporation for collection at a fee of one-third of the amount collected. James Daly was contacted in Alpine, California, came to Los Angeles and met defendant at the company office. A week or ten days later, on June 23rd, Daly made a settlement of the note with defendant for $1,675, giving him a cashier's check for that amount. Defendant made out a deposit ticket and caused the check to be deposited to the account of the corporation in the Security Bank. Defendant promised Watry that he would be notified when a collection was made. He heard nothing from defendant until the middle of August, when he called defendant by telephone and was told to come in the first of the month when defendant would have a check for him. Watry called at the office of the company September 1st and was told by defendant that $400 had been collected, that the man who made out the checks was on vacation, but that a check would be mailed to him on September 5th. No check came. About September 20th Watry called defendant who told him a mistake had been made in dating the check and that a check for $400 would be mailed to him October 1st. No check arrived, and in October Watry again saw defendant at the company office and defendant promised to send a check to him 'right away.' About November 1st defendant gave Watry a check for $400 which was dishonored by the bank because it required two signatures and had only one. On December 15th Watry received from defendant a cashier's check for $350 and his check as trustee for the company in the amount of $116.66. This latter check was returned for insufficiency of funds. Watry testified that defendant had told him that payments on the note were coming in at the rate of $150 per month but only $600 had been collected and that he would receive $100 per month. Prior to the trial, Watry was paid two-thirds of $1,675, with funds received from the sale of assets of the company. A representative of the Security Bank testified that on June 22, 1948, the bank balance of the Nick Harris Agency was $7.60. At the close of business the day the Watry check had been deposited the balance was $1,468.10 and on July 1st, $32.72. In the meantime some 32 checks had been drawn on the account, and some small deposits had been made. Although Mr. Morgan and Miss Scherrei had authority to draw checks on the account there was no evidence as to the signatures appearing upon the checks which had dissipated the account. Mr. Morgan was called as a witness and testified that he sometimes signed numbers of checks in blank at the request of defendant. He was not questioned as to whether he had drawn or issued any of the 32 checks. Miss Scherrei was not called as a witness and her absence was not accounted for by the People. On cross-examination defendant was questioned as to his knowledge of a check for $225 charged to the account on June 24th, and one for $250 on June 25th, which were shown on the bank records, and denied that he had any knowledge of either of them. He testified that he had not used any of the money himself, but he was not questioned concerning his knowledge of the issuance of these checks nor as to the purposes for which the money may have been used. It appeared without contradiction that the office of the company was placed under attachment in September and that everything in the office was taken into possession of the Marshall. The bank accounts also were attached but there was no evidence as to the bank balances at that time. Neither defendant nor any other witness was questioned concerning the cancelled checks...