People v. Hodges

• Decision Date: 13 September 1957
• Docket Number: Cr. 5697
• Citation: 153 Cal.App.2d 788,315 P.2d 38
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William C. HODGES, Defendant and Appellant.

Page 38

315 P.2d 38

153 Cal.App.2d 788

The PEOPLE of the State of California, Plaintiff and Respondent, v. William C. HODGES, Defendant and Appellant.

Cr. 5697.

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

Sept. 13, 1957.

Joseph R. Laird, Jr., Garden Grove, for appellant.

Edmund G. Brown, Atty. Gen., Lynn Henry Johnson, Los Angeles, for respondent.

ASHBURN, Justice.

Defendant appeals from judgment of conviction of three charges of grand theft ¹ and from order denying motion for new trial. He also attempts to appeal from the verdict, which plainly is not appealable. People v. Tompkins, 109 Cal.App.2d 215, 217, 240 P.2d 356.

Appellant's principal argument is that the evidence is insufficient to sustain the verdict with respect to each of the first three counts.

Defendant was business manager of Gardena Valley News, a concern engaged in publishing a newspaper in the city of Gardena. He had been contacted by Mr. Medric Spenard, an importer and exporter, who handled Canadian newsprint and offered him 600 tons of the same. His company was desirous of buying 200 tons, but was unable to handle a 600-ton transaction. Defendant took Mr. Spenard to the Times-Mirror Company and there made a deal for it to buy the entire lot and then re-sell 200 tons to the Gardena concern. The delivered price to Times-Mirror Company was $190 a ton and Spenard had agreed to pay defendant a commission of $5 a ton. The Times-Mirror Company arranged a letter of credit for $114,000 to finance the deal. This was on August 9, 1955. On the 23rd of that month defendant told Mr. Lewis W. Daniels, the operator of a restaurant in Gardena, fo the deal and said he needed $500 to give to the broker (Spenard) to insure shipment of the paper; he termed it 'marginal' money required to get the paper shipped, meaning a part payment on the purchase price; defendant further told Daniels that if the thing did not materialize he would get his money back but if it went through he would receive $1,000 upon an investment of $500; he further said he would turn the money over to the broker, Spenard, so he could sent it to Canada. Defendant did not mention a loan or say he wanted the money for himself; he did say he wanted it turn over to Spenard to be used as partial payment on the newsprint. Relying upon these representations Mr. Daniels turned over to defendant $500 on that same day.

In the latter part of August defendant also told Mr. Dudley Gray, a Gardena attorney, of the newsprint deal; said he would make a profit of $10 a ton but needed $1,000 to $1,500 to pay down on margin and insure delivery of the paper; that he had to give the money to the Los Angeles representative of the Canadian seller; that $5 a ton was to go to Canada as 'margin.' He offered to give Gray helf his profit for an advance of the necessary money. A week later he showed Gray the letter of credit and said the money for payment of the purchase price was guaranteed. On these representations Gray gave him $500 on September 15 and another $500 on October 3. This he did 'for the purposes of paying the Canadian newsprint representative for sending it to Canada;' '[f]or the sole purpose of sending that money to Canada to guarantee shipment of this newsprint down here.' There never was any mention of a loan between defendant and Gray.

Delays in delivery of the newsprint brought inquiries from Daniels and Gray as to the reasons. Defendant gave various explanations and finally told Gray he had given his money to Spenard; Gray telephoned Spenard and found that the statement was untrue. In fact, Spenard had never told defendant that money was necessary to guarantee delivery, had not asked defendant for any money or been promised any, and did not receive one dollar from him. On one occasion in answer to Daniels' inquiry defendant said that the deal was closed, the paper was in Los Angeles and he was going to Newport over the weekend to pick up the check and get the signature. Defendant himself testified, 'I always needed money.' Asked whether he intended to use Daniels' money for personal expenses he said: 'Whatever came up first and needed it the worst.' With reference to the Gray money: 'What did you intend to do with the money which you got from Mr. Gray? A. Use it the same way; whatever needed first.' He also admitted that he never gave any of the money received from Daniels or Gray to Spenard. When questioned by Deputy Sheriff Knowles defendant said that he had turned Gray's $500 over to Spenard, followed immediately by the statement that he could not recall, 'that there might have been part of it.' With respect to the Daniels money he told Knowles 'that he had spent it in various ways * * that he had spent it on his own personal expenses and debts.'

The paper deal was never consummated. In early December Spenard received a telegram from the seller saying that the price had gone up $5 a ton. He then asked defendant whether he would split the increase with him. Defendant declined and apparently this impass caused the failure of the deal. Defendant received no money from it and the demands made upon him by Daniels and Gray for the return of their money proved fruitless.

Other portions of the state's evidence had a tendency to offset some of the foregoing but it is not necessary to discuss it. Defendant himself was the only witness for the defense. His version of the transactions with Daniels and Gray varied substantially from their testimony, but he was impeached by proof of conviction of three prior felonies, viz., larceny as bailee in Colorado in 1931, issuing checks without sufficient funds in California in 1943, and grand theft in California in 1950. The jury and trial judge rejected his story and adopted that of the complaining witnesses.

The foregoing resume of the facts is built upon testimony and inferences favorable to respondent pursuant to the established rule of review, which requires us to assume in favor of the verdict every fact which the jury could reasonably have deduced from the evidence, and to refrain from drawing contrary inferences of our own. People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778. Those facts are sufficient to support a finding of grand theft (Pen.Code §§ 484, 487, subd. 1), upon the theory of false pretenses or that of trick and device. 'Larceny by trick and device is the appropriation of property, the possession of which was fraudulently acquired; obtaining property by false pretenses is the fraudulent or deceitful acquisition of both title and possession.' People v. Ashley, 42 Cal.2d 246, 258, 267 P.2d 271, 279.

The language of People v. Gilliam, 141 Cal.App.2d 749, 754, 297 P.2d 468, 471, is pertinent: 'It is settled, however, that a promise made with an existing intent not to perform may constitute a false pretense within the grand theft statute. People v. Ashley, 42 Cal.2d 246, 262-265, 267 P.2d 271; People v. Weitz, 42 Cal.2d 338 343, 267 P.2d 295. The jurors in this case were justified in inferring that defendant at the time of making them intended not to perform his promises.'

Likewise that of People v. Bartges, 126 Cal.App.2d 763, 770, 273 P.2d 49, 52; 'Without again setting forth the evidence in detail, suffice it to say that it clearly shows that appellant with a preconceived design to appropriate the money to his own use, obtaining possession of it by means of fraud and trickery. The fraud vitiated the transaction and the owner is deemed still to retain a constructive possession of the property. The owner does not part with title to the alleged thief where as here, he delivered it to appellant...