People v. Daener, Cr. 4384
| Decision Date | 06 April 1950 |
| Docket Number | Cr. 4384 |
| Citation | 96 Cal.App.2d 827,216 P.2d 511 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE v. DAENER et al. |
Morris Lavine, Los Angeles, for appellant.
Fred N. Howser, Attorney General, Howard S. Goldin, Deputy Attorney General, for respondent.
Defendant O'Rourke was convicted by a jury of having conspired with defendant Daener to cheat and defraud John DuHart and Lottie DuHart by criminal means and to obtain money and property from them by false pretenses and false promises with fraudulent intent not to perform such promises. O'Rourke appeals from the judgment.
As grounds for reversal defendant urges that the evidence is insufficient to sustain the verdict and that the court erred in its instructions to the jury.
The DuHarts owned about 2000 acres of land at Fairmont in Los Angeles County on which they raised wheat and barley. The O'Rourkes had an alfalfa ranch a few miles away. About February 19, 1946, the two families became acquainted and thereafter visited socially. Mrs. DuHart planned a trip to Oregon. She told O'Rourke about it and said she could not go until she had sold their grain. O'Rourke told her that a friend of his named Daener had a grain store in Arcadia and would buy the grain; that he and Daener had been in the liquidating business together. About a week later O'Rourke brought Daener to the DuHart ranch and introduced him to the DuHarts as the man he had been telling them about who would buy their grain. DuHart stated that he had 2000 sacks of wheat for sale at $5 a sack. O'Rourke told Daener to show the DuHarts his credentials, whereupon Daener showed them 'his income tax that he paid in 1946 for either $18,000.00 or $38,000.00,' and his card. O'Rourke then stated 'He doesn't have to bother about that because all dealings that are to be done will be done through us at our home.'
After looking at the wheat, O'Rourke and Daener told DuHart they would take it at $5 a sack, which was its reasonable market value, payment to be made by certified check when the last load was taken. Either O'Rourke or Daener told the DuHarts they would pick up the wheat as soon as Daener's trucks were available and take it to Daener's place of business in Arcadia. O'Rourke said Daener had a fleet of trucks, but Daener said his trucks were busy. Beginning a few days later, a Mr. Schwab and a Mr. Kiter picked up the what from day to day. The last load was taken on September 6, 1946. That morning the truck driver told the DuHarts the wheat was being taken to California Milling Company. On September 6, after the last load was taken, the DuHarts went to the O'Rourke home in Los Angeles. There they met the O'Rourkes and Daener. Daener said 'He had to go down and pay the truck drivers off.' O'Rourke said, 'Well, you go ahead, Al [Daener], and I will settle with you later.' Daener left. O'Rourke then told the DuHarts that as soon as Daener got things straightened around they would get their money. Daener returned later the same evening and told the DuHarts 'He hadn't gotten every thing straightened out'; he and the O'Rourkes would be up to the DuHart ranch a week from the following Sunday and bring a certified check. O'Rourke concurred. The DuHarts asked why the wheat had been sold to California Milling Company instead of going to Daener's place of business. Daener replied that his warehouses were full. During the conversation Daener said the wheat had been stored at California Milling Company. Later the same evening he said they had sold it because the company did not want to store it but they had tried to store it before they sold it.
On the appointed Sunday O'Rourke, without Daener, appeared at the DuHart ranch. He told the DuHarts not to worry about the money; it was all right; he and Daener would pay them within a short time; Daener had gone to San Francisco on a business trip; and if Daener did not pay for the wheat, he would pay them. Daener wrote the DuHarts from San Francisco that he would see them the following Sunday. He appeared then without the O'Rourkes. He told the DuHarts he was having trouble with his wife; they would have the the money within a short time; he and O'Rourke would come up and pay it; not to worry; they had nothing to worry about; they would get their money. He told them he carried a $100,000 life insurance policy with Occidental which would cover them in case anything happened to him. He gave them a writing to that effect.
The DuHarts next saw O'Rourke at their ranch on October 5. They asked if he had brought their money. He told them not to worry, to keep claim, everything was all right; Daener's 'wife had his business tied up and therefore they could not get the money.' That afternoon O'Rourke 'Got pretty drunk' and said to Mrs. DuHart The O'Rourkes stayed at the DuHarts that night. The next day O'Rourke had Mrs. DuHart obtain the paper Daener had signed and given her. He then had her sign it and give it to him. He kept it. He also had her sign and give him a bill of sale of the wheat. In part it read: 'Note of $10,000 dated 9/6th due and payable in sixty days accepted at 6% interest.' He gave her a note for $10,000, dated September 6, signed by Daener, payable in 60 days to the DuHarts, telling her it was just as good as money and that he and Daener would pay it in not more than a week or ten days. The O'Rourkes left the next morning. The DuHarts did not see either of them or Daener after that until the preliminary hearing.
O'Rourke and Daener employed Schwab to haul the wheat, O'Rourke saying they were to move it to a warehouse and if any questions were asked regarding the ownership of the truck, Schwab was to say it was one of Daener's trucks. O'Rourke told Kiter, Schwab's helper, that he and Daener were big time wheat or grain operators, owned warehouses in Los Angeles, had hundreds of tons of other grain to be hauled, and gave him $5 for room rent and meals. Schwab took the first load of wheat to Globe Mills, which refused to take it. O'Rourke had submitted samples of the wheat to Globe Mills, which found it unsuitable for its needs. Daener then sold it to California Milling Company. O'Rourke told the buyer for California Milling Company that he had known Daener as a business man in San Francisco for years and that he was down here doing a little buying. California Milling Company paid Daener $9,501.62 for the wheat as follows: August 23, $1194.95, August 27, $1873.32, August 29, $2390.56, September 3, $1185.57, September 5, $1166.47, September 9, $1180.54, September 11, $510.21.
Any one doing business in Arcadia was required to have a city licnese. Daener did not have an Arcadia license and did not have any place of business or warehouse in Arcadia. At the time the wheat was sold to California Milling Company O'Rourke was in financial difficulty. He had borrowed about $600 and sold a $4184 trust deed at 25% discount. September 3, 1946, O'Rourke had more than $4000 in cash in...
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