People v. McClain

• Decision Date: 19 April 1956
• Docket Number: Cr. 3205
• Citation: 140 Cal.App.2d 899,295 P.2d 952
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Harold F. McCLAIN, Defendant and Appellant.

Page 952

295 P.2d 952

140 Cal.App.2d 899

The PEOPLE of the State of California, Plaintiff and Respondent, v. Harold F. McCLAIN, Defendant and Appellant.

Cr. 3205.

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

April 19, 1956.

Page 983

Benjamin F. Marlowe, Oakland, for appellant.

Edmund G. Brown, Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

NOURSE, Presiding Justice.

The defendant was tried to a jury on an information framed on four separate counts--two charging grand theft, and two charging the issuance of fictitious checks. The jury found him guilty on the first count, and not guilty on the other three. His motion for a new trial was denied, and he was admitted to probation with directions to restore the embezzled money.

There is no material dispute in the evidence. The verdict rests largely on the admission and confession of the defendant. The only ground urged for a reversal is a claim of error in the instructions to the jury.

The defendant was local manager of a branch store of the Owl Drug Company. He was permitted to take from company funds s1,000 a day which he was required to distribute to the several cash registers for the purpose of making change for the customers. Prior to the trial be gave a statement in writing to this effect:

'My name is Harold Frank McClain and I live at 701 Walker Ave., Oakland, California. About 4 weeks ago I started preparing fictitious checks and estimate at this writing that the total amount to between Seven Hundred and Fifty and Eight Hundred Dollars. I fully realize this was wrong and making this statement of my own free will, with no threat or promise having been made to me.'

This statement was supplemented by the defendant's testimony that he had taken the moneys from the working fund for his own personal use. He expressed the intention to return the money to the owner.

Under these facts appellant is left to his attack upon the instruction advising the jury that defendant's custom of withdrawing company funds for his own use with the intention of eventually restoring them did not make his acts noncriminal. Whatever error or uncertainty there may be in this instruction was fully cured by the instruction reading:

'The intent essential to embezzlement is the intent to fraudulently appropriate the property to a use and purpose other than that for which it was entrusted, in other words, the intent to deprive the owner of his property, but, the other element of the offense being committed, the crime is committed, even though it was intended to deprive the owner of his property only temporarily and to eventually return it.'

The statutory law is found in sections 512 and 513 of the Penal Code. Section 512 reads:

'The fact that the accused intended to restore the property embezzled, is no ground of defense or mitigation of punishment, if it has not been restored before an information has been laid before a magistrate, or an indictment found by a grand jury, charging the commission of the offense.'

The rule of decision fully following the statute is found in People v. Talbot, 220 Cal. 3, 16, 28 P.2d 1057; People v. Colton, 92 Cal.App.2d 704, 710, 207 P.2d...