People v. Glenn

• Decision Date: 07 April 1950
• Docket Number: Cr. 2582
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. GLENN.

Page 457

216 P.2d 457

96 Cal.App.2d 859

PEOPLE v. GLENN.

Cr. 2582.

District Court of Appeal, First District, Division 2, California.

April 7, 1950.

Hearing Denied May 4, 1950.

Thomas L. Glenn, in pro. per., and Ivan C. Sperbeck, Oakland, attorney for appellant.

Fred N. Howser, Attorney General of the State of California, Clarence A. Linn, Deputy Attorney General, J. F. Coakley, District Attorney of the County of Alameda, Cecil Mosbacher, Assistant District Attorney, Laurence E. Dayton, Assistant District Attorney, Oakland, attorneys for respondent.

NOURSE, Presiding Justice.

Defendant was found guilty by a jury on 12 counts of grand theft and appeals from the judgments of conviction entered thereon and from the orders denying a new trial. We will first consider the contention that the verdicts are not supported by the evidence.

Count 1. Theft of $900 on July 10, 1946, given defendant by his client Reilly in behalf of his client Rasmussen. The latter was a contractor who was in debt when Reilly associated with him. Defendant acted as attorney with respect to both the debts and the association. Because of continuing pressure of Rasmussen's creditors it was agreed that Reilly would take the business in his name and as a matter of form buy Rasmussen out. Most pressing debts were $1100 to Internal Revenue and $900 State unemployment insurance. Reilly first agreed to pay $1100 to be used on the payment of those debts, which amount he paid to defendant in June, 1946. On July 10, 1946, he gave defendant a check for $900 more saying that Rasmussen had that much more coming to him and that it was to be used for the same purpose. In August defendant paid $1100 to the Internal Revenue; the State unemployment insurance was never paid. Defendant contends that he was entitled to keep the $900 as fee; that the money Reilly paid was intended for Rasmussen, that Rasmussen knew he owed defendant a fee and did not instruct him to use the $900 for creditors or demand return to himself, whereas Reilly could not restrict the use of the money he owed to Rasmussen; that defendant reported the $900 as taxable income. However respondent quotes testimony of Rasmussen and Reilly showing that defendant himself informed Rasmussen that the $900 due the State had to be paid immediately and advised him to get it from Reilly and that Reilly told defendant that he brought the defendant the $900 for payment of these taxes with the knowledge of Rasmussen. It is argued that this evidence shows a binding understanding between defendant, Rasmussen and Reilly to use the $900 only for the necessary payment to the State, and the evidence fully supports that theory.

Counts 2 to 8. These were closely interrelated. They all relate to thefts from defendant's client Piotti. In 1947 Piotti, a tavern owner, was deeply in debt and became ill; he therefore offered his tavern for sale. One of his creditors, Harry Davis, brought defendant to his home. According to the evidence of the People, it was agreed that defendant would act as escrow holder for the sale, pay off the creditors and after everything had been paid take his fee which 'wouldn't be too much' and give Piotti what was left. He induced Piotti, who was ill, to sign a power of attorney in the name of Mrs. Piotti. Mrs. Piotti concluded a sale of the tavern for $27,000 and a check of $26,500 dated June 2, 1947, was turned over to defendant to be placed in escrow for the purpose of paying the creditors. On June 3, 1947, defendant opened an account for himself as trustee (not mentioning a specific trustor) in which the $26,500 was deposited. A copy of the ledgersheet of that account shows that from June 3 to October 3, 1947, the whole deposit was withdrawn (there was even a small overdraft) and no deposit except the original one was made until that date. Some of the withdrawals were concededly legitimate but the following ones are made the basis for the grand theft charges. Immediately on June 3, 1947, defendant withdrew $2500 as his fee, (count 2) on June 11, $1000 (count 3) and on August 18 again $1000 (count 7), all as fees. On July 8, 1947, he gave a check for $1500 on the trust account to refund a deposit to that amount made in May, 1947, on the purchase price of real property belonging to another client of defendant, which amount defendant had then deposited in his personal account (count 4). On July 24, 1947, he gave a check of $300 on the trust account to pay off the same amount which he had received on November 19, 1946, on a judgment recovered for another client which amount he had then deposited in his personal account (count 5). On August 4, 1947, he gave a check of $500 as a loan to Betty Nelson, who had engaged him as an attorney with respect to the settlement of the liabilities and the termination of a joint tenancy interest of her husband who had been killed in an accident a week before; that check was paid out of the Piotti trust account (count 6). On September 2, 1947, he gave to Mrs. Murray, a client, a check of $3500 on the same trust account as second party payment on an amount of $6700 he had received for her in April, 1947, from the sale of real property, and which amount he had not deposited in the trust account. Piotti stood in no relation whatever to any of the four clients of defendant to whom these payments were made. During the period of these seven withdrawals, undisputed tax debts in large amounts remained unpaid; the Collector of Internal Revenue had served on defendant a levy for taxes due from Piotti. (Debts totaling $7000 in which Davis, who introduced defendant to Piotti, had an interest were paid in full.) On July 25, 1947, Mrs. Piotti made written demand for an accounting of the escrow money and instructed defendant to deliver all funds and papers to her attorney Bernard Sheridan. Notwithstanding continued pressure by that attorney nothing was ever paid back. Defendant claimed $5000 as fee. In a return to the levy of the Collector of Internal Revenue of February 28, 1948, defendant stated that he had $9,899 on hand after deduction of all payments made for Piotti and $5000 fees. This amount was not paid to the Collector. For the first time at the trial defendant testified that in March, 1948, he had returned it to Piotti in cash taken from defendant's safe where he had put it in accordance with alleged instructions of Piotti to keep it from the hands of the creditors. He claimed that he had the receipts in the files which the district attorney took from his office. All this is denied by Piotti and is in conflict with prior statements of defendant. Defendant argues that he testified to an agreement entitling him expressly to a fee of $5000, but even if this was not accepted (the Piottis denied it) he was entitled to a fee to come from the escrow amount and there was expert evidence that $5000 was a reasonable fee for the work he did. Respondent points out the contradictions and impossibilities in defendant's evidence as to his services--among other things he testified to conferences in the year 1947 in behalf of Piotti with Frank Hogan, one time president of the American Bar Association, who died in 1944--and to the fact that much of the alleged service was performed, if at all, after his authority had been revoked. Defendant maintains that differences as to reasonableness of fees do not constitute theft. With respect to the payments to other clients from the trust account, defendant argues that these do not constitute theft because there was no proof that the money in that account belonged to Piotti as the account was not opened as an account for that specific trust but as containing money from clients in general. Respondent points to the fact that at the time the payments were made there had been no deposit of any other money in that account other than that of the Piotti trust.

Count 9. Theft of $3,142.59 from his client Betty Nelson. Betty Nelson, to whom defendant had loaned $500 from the Piotti trust money, (count 6) gave defendant on September 30, 1947, $4000 to repay the $500 and for the payment of certain bills. Defendant paid only $325.41 in bills. All other bills he left unpaid. The money was expended partly over defendant's personal account, partly over the trust account. Defendant testified that he returned the $4000 in November, 1947, and there was a supporting witness, but Mrs. Nelson denied it and there is much evidence that in the first part of 1948 defendant took the position that he still owed Mrs. Nelson the $4000. He could not produce the receipt he said Mrs. Nelson had given him.

Count 10. Theft of $2500 from Betty Nelson on October 30, 1947. On October 21, 1947, Mrs. Nelson gave defendant a check for $2500 to be loaned to Mr. and Mrs. Mouat on a first deed of trust. The Mouat property was encumbered. Defendant testified that he nevertheless made the loan and after some months received the money back, all without receipts. Mr. Mouat testified that he never received it. At any rate the money was not returned to Mrs. Nelson. Defendant testified that Mrs. Nelson had let him keep that money to take care of the loan, costs and fees she owed him. He contends that she owed him $500 loan, $500 costs and $1500 fees. Mrs. Nelson denied all of this.

Count 11. Theft of $1500 from his client Mrs. Murray on November 19, 1947. Under count 8 on September 2, 1947, defendant paid back from Piotti's money $3500 of an amount of $6700 received for Mrs. Murray. Prior to that date (April 15, 1947) he had returned her $1500. There were also a few other small receipts and payments in that time. From September, 1947, to March, 1948, Mrs. Murray pressed defendant to get the remaining amount of approximately $1700. On February 13, 1948, he had his secretary pay her $150 but had her sign a promissory note for it, not knowing the character of the paper, but thinking it was merely a receipt. Since then nothing was returned to her. Defendant contends that...