People v. Jones

• Decision Date: 28 November 1950
• Docket Number: Cr. 5101
• Citation: 224 P.2d 353,36 Cal.2d 373
• Court: California Supreme Court
• Parties: PEOPLE v. JONES.

Page 353

224 P.2d 353

36 Cal.2d 373

PEOPLE v. JONES.

Cr. 5101.

Supreme Court of California, in Bank.

Nov. 28, 1950.

Horace Appeal, Los Angeles, for appellant.

Fred N. Howser, Atty. Gen. and Donald D. Stoker, Deputy Atty. Gen., for respondent.

SPENCE, Justice.

Defendant was charged with two counts of grand theft, each relating to a separate transaction with a different person: (1) $6,000 from E. Y. Masi and (2) $4,000 from Thomas W. Patterson. He pleaded not guilty to both counts and waived a trial by jury. The case was submitted upon the testimony taken at the preliminary hearing and additional evidence introduced by both parties. The court found defendant guilty on both counts, and granted leave to file an application for probation, upon the hearing of which the proceedings were suspended and defendant was placed on probation for five years. Defendant made a motion for a new trial, which was denied. He has appealed from the order denying his motion for a new trial and has purportedly appealed from an alleged 'judgment of sentence and conviction.' Since the court did not pronounce judgment but suspended proceedings and granted probation, the purported appeal from the judgment will be dismissed. People v. Guerrero, 22 Cal.2d 183, 184, 137 P.2d 21. There remains for consideration only the appeal from the court's order denying defendant's motion for a new trial. Pen. Code, § 1237.

As ground for reversal, defendant argues the single point that the evidence was insufficient to sustain his conviction of grand theft 'sounding in false pretenses.' In resolving this issue, it is the settled rule that an appellate court 'will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by' the trial court to warrant its implied fundings, and before they 'can be set aside * * * it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below.' People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 779. Applying this rule, defendant's claim as to the insufficiency of the evidence cannot be sustained.

Defendant and two others, Stock and Parsons, were copartners engaged in the conduct of an insulating business under the name of Sun Supply Company. After some few weeks of operation, defendant induced Masi and Patterson to contribute certain sums of money to the enterprise and to become members of the firm. Their checks were made payable to the Sun Supply Company and were deposited in the partnership bank account. Part of the money so obtained from Masi and Patterson was used to discharge pre-existing debts of the partnership, including a chattel mortgage on partnership property and the reimbursement of defendant for funds he had advanced to the partnership business; and part was paid during the existence of the augmented partnership to each of the five partners as salary or compensation for services rendered. The partnership terminated some thirty days after Masi and Patterson had invested their money therein, and its business and affairs were turned over to a law firm for the purpose of dissolution. After payment of the existing debts and cost of the liquidation proceedings, the remainder was divided equally four ways among defendant, Stock, Patterson, and Masi, with Parsons not receiving any part of such proceeds inasmuch as he had not invested any money in the business.

It appears from the testimony of Masi and Patterson that defendant induced their advancements of money upon the following representations: That the business was 'a gold mine,' was 'making nothing but money,' and 'there wasn't a chance of losing'; that the equipment of the firm 'was all paid for'; and that more money was needed to secure new equipment particularly 'another truck' required because of the volume of business being done by the firm. In reality, the firm had so little business that the equipment already possessed by it was sufficient to take care of its needs, covering advance orders for but 'three or four days' instead of the represented 'month's steady work' as already assured, with a single truck making an 'average' return of '$200 a day.' Masi accordingly advanced $6,000 and Patterson advanced $4,000. Upon objection to Patterson entering into the business, Masi was given a refund of $1,000. By way of salary and pro rata share upon dissolution of the business, Masi received approximately another $1,000 and Patterson $900. The management of the business was left to defendant and his two original partners. Masi and Patterson did not desire, and did not have, authority to sign checks on the partnership bank account, apparently on on the ground that there were already 'enough' names on the signature card.

The crimes of larceny, embezzlement, obtaining money by false pretenses and kindred offenses are now all included under the designation of theft, Pen. Code. § 484; People v. Myers, 206 Cal. 480, 483, 275 P. 219, but the elements of the several offenses have not been changed. People v. Selk, 46 Cal.App.2d 140, 147, 115 P.2d 607. So pertinent to the establishment of defendant's guilt in proof of his commission of the crime of grand theft 'sounding in false pretenses' are these considerations: (1) whether there were representations of past events or existing facts as distinguished from a mere expression of opinion or promise of future action, 22 Am.Jur. § 12, p. 450; 12 Cal.Jur. § 4, p. 452; People v. Daniels, 25 Cal.App.2d. 64, 71-72, 76 P.2d 556, though a promise, if unconditional and made without present intention of performance, will constitute actionable fraud, People v. Gordon, 71 Cal.App.2d 606, 624-625, 163 P.2d 110; People v. Mason, 86 Cal.App.2d 445, 449, 195 P.2d 60; (2) whether the representations were made with intent to defraud the owner of his property, 22 Am. Jur. § 23, p. 456; 12 Cal.Jur. § 9, p. 457; People v. Bowman, 24 Cal.App. 781, 785-786, 142 P. 495; People v. Boyd, 67 Cal.App. 292, 295, 227 P. 783; and (3) whether the owner was actually defrauded in that he parted with his property both possession and title in reliance upon the false representations. 22 Am.Jur. § 25, p. 457, § 26, p. 458; 12 Cal.Jur. § 10, p. 457; People v. Barnett, 31 Cal.App.2d 173, 175, 88 P.2d 172.

There appears to be abundant evidence to support the trial court's implied findings that false representations were made by defendant with intent to defraud Masi and Patterson, that the latter two men believed and relied upon such representations and while so believing, parted with the sums of $6,000 and $4,000, respectively. From the record it might justifiably be inferred that defendant not only fradulently inveigled Masi and Patterson to join the partnership and pay over their moneys, but that he had planned to use a large part of their investment to discharge old debts of the firm before they would have time to discover his fraud; that defendant had no intention of purchasing new equipment with their money but stealthily intended to, and and did cause, the mortgage indebtedness incurred by himself and Stock to be satisfied promptly with the new funds, as well as his own previous advancements to the firm, and that commensurate with the amount of business being done, no new equipment was required at all; that neither defendant nor his original partners took Masi and Patterson into the inner workings of their organization but that defendant, by artful design and suggestion through 'big sales talk' as to the earning capacity of the firm based on alleged past business receipts, induced the newlyfound investors to be so preoccupied with dreams of rich profits that they were led to believe that it would be to their financial advantage to leave the handling of details to defendant and his original partners; that to this end it was arranged that defendant and his original partners would write all checks against the partnership bank account to the exclusion of Masi and Patterson; that insofar as Masi and Patterson were concerned, the Sun Supply Company was a mere ruse, used by defendant as a scheme for increasing the number of partners and so augmenting the cash assets of the firm at a time when it was in a precarious financial condition; that defendant's pretended business plans for expansion of the business had no foundation in fact, and accordingly Masi and Patterson were not placed in positions of responsibility whereby they might know at once the disposition of their invested capital in the misrepresented enterprise. Both Masi and Patterson testified that defendant had taken them to visit the premises of the business, a small plant, which 'looked like business had just started' but which defendant represented as having such a rosy future on the basis of 'money * * * that they were (then) making' out of the venture that Masi and Patterson were induced to make their respective investments so that the alleged needed additional equipment could be purchased; and that it was not until the receipt of a financial statement from the bookkeeper some three or four weeks after their respective advancements of funds that Masi and Patterson learned wheree their money was going to pay off indebtedness incurred for equipment purchased by the original partnership, and that no second truck or other equipment was bought after their investments. Defendant's statements as to the amount of business being done by the firm and the need for more equipment to meet the alleged advance orders disclose defendant's intent to defraud by causing Masi and Patterson to part with their money for an interest in an enterprise of doubtful and misrepresented value. Masi and Patterson corroborated each other in their testimony as to the substance of defendant's false representations, People v. Helmlinger, 69 Cal.App. 139, 142, 230 P. 675; People v. Mace, 71 Cal.App. 10, 20, 234 P. 841, and defendant does not dispute that 'one victim...