People v. Pond, Cr. 5612

• Decision Date: 10 June 1955
• Docket Number: Cr. 5612
• Citation: 44 Cal.2d 665,284 P.2d 793
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Stillman POND, Defendant and Appellant.

Page 793

284 P.2d 793

44 Cal.2d 665

The PEOPLE of the State of California, Plaintiff and Respondent, v. Stillman POND, Defendant and Appellant.

Cr. 5612.

Supreme Court of California, In Bank.

June 10, 1955.

Cannon & Callister and Morris Lavine, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., William E. James Deputy Atty. Gen., S. Ernest Roll, Dist. Atty., and Robert Wheeler, Deputy Dist. Atty., Los Angeles, for respondent.

SCHAUER, Justice.

Defendant, a real estate broker, was charged with grand theft in violation of paragraph 1 of section 487 of the Penal Code. That statute provides in material part, 'Grand theft is theft committed in any of the following cases: 1. When the money, labor or real or personal property taken is of a value exceeding two hundred dollars * * *' Defendant pleaded not guilty and was tried by a jury instructed at length, among other things, as to the sections of the Labor Code which regulated the exaction by employers of cash bonds from employes or applicants, including section 405, which provides that misuse by an employer of such a cash bond is theft. ¹ The jury found defendant guilty. He appeals from an order denying his motion for new trial. For reasons more fully explained hereinafter, we have concluded that the order must be reversed because so far as the record discloses defendant may well have been convicted of offenses (violations of section 405 of the Labor Code) not charged in the indictment.

The indictment alleges ten counts of 'Grand Theft (Vio.Sec. 487.1 PC),' the taking of money of various victims. During the trial, after the close of the People's case, Counts 3 and 4 were dismissed on motion of the People because the complaining witness as to those counts had become ill and could not complete her testimony. The jury found defendant guilty on Counts 1, 2, 9, and 10 and not guilty on Counts 5 and 6; they were unable to agree as to Counts 7 and 8 and those counts were dismissed. Defendant's motion for a new trial was denied. The trial court ordered the proceedings suspended as to Counts 1, 2, 9, and 10 and granted probation upon certain conditions.

On appeal defendant originally contended (through counsel other than his present attorney) that (1) the trial court erred in denying his motions for declaration of a mistrial and for continuance, made at the conclusion of the People's case when it was learned that the prosecuting witness as to Counts 3 and 4 would be unable to complete her testimony; (2) the trial court prevented defendant from presenting his defense by sustaining objections to his offers of proof intended to show that he engaged in the transactions charged as crimes and in other business transactions in an effort to rehabilitate himself financially, and that the conduct of a business associate (the prosecuting witness as to Counts 3 and 4) made it impossible for defendant to complete those transactions; (3) remarks of the trial judge during the trial prejudiced defendant; (4) the verdicts of guilty are contrary to the evidence. The People oppose these contentions and urge that the convictions can be upheld under section 405 of the Labor Code. Defendant replies that reliance cannot be placed on section 405 because the indictment did not charge a violation of that section, and that the section is unconstitutional.

The record on appeal originally did not include the instructions to the jury and contained no mention of the Labor Code and no indication that the People, defendant, or the judge considered that defendant was being tried for violation of section 405 of that code. So far as appeared from the matter then in the record, the People, defendant, and the judge considered that the evidence was directed to establishing the crime of theft on the theory of obtaining money by false pretenses or perhaps larceny by trick and device or embezzlement.

At oral argument before this court, defendant's present counsel, when the commenced to present his contentions concerning section 405 of the Labor Code, requested that the record on appeal be augmented to include the instructions to the jury. This has since been done and it now appears, as stated above, that the jury were instructed at length as to the Labor Code sections (400-410) which regulate the exaction by employers of cash bonds from employes or applicants. ²

Evidence as to Counts 1 and 2

Count 1 charged grand theft of $5,500 from Mr. and Mrs. G. M. Bradford on or about April 24, 1951. Count 2 charged grand theft of $1,000 from Mr. and Mrs. J. A. Reinders on or about August 30, 1951. As previously stated, defendant was found guilty on each of these counts.

Defendant carried on a real estate business in Lancaster. Mr. and Mrs. Bradford, who were interested in buying and operating a chicken ranch, saw a newspaper advertisement of defendant. On April 24, 1951, they went to defendant's office and told him of their previous experience in raising chickens and their interest in that business. Bradfor said that he had $7,000 and wanted to buy a chicken ranch. Defendant showed the Bradfords various ranches but said, 'I don't think you have got quite enough money for them.' Defendant then showed them his own ranch, where a chicken house was under construction, and told Bradford that he needed a man such as Bradford, that if the Bradfords would do all the work of raising chickens defendant would 'furnish everything,' that the Bradfords could live in a house on the ranch, that Bradford would have to deposit $5,500 with defendant, and that in a short time he would receive his money back and a large profit. Defendant and the Bradfords executed a written contract dated April 24, 1951, which provided that the Bradfords 'agree to put up $5500.00 as a guarantee that they will properly supervise and operate the chicken house'; defendant agreed to furnish living quarters and all equipment; net income was to be divided 75 per cent to the Bradfords and 25 per cent to defendant until the Bradfords received $5,500, the 60 per cent to the Bradfords and 40 per cent to defendant; no termination date was stated. Bradford delivered his check for $5,500 to defendant. Defendant orally promised that 'the house would be furnished and the chicken house would be finished and ready to go into production of chickens on the 9th of May.' Defendant cashed Bardford's $5,500 check and, according to his testimony, the proceeds were 'just used in my regular business.'

About May 6th the Bradfords received a letter from defendant stating that the house and chicken house would be ready for the Bradfords on the 9th. On May 9th they returned to defendant's ranch and found that the house and chicken house were not completed. Defendant had the Bradfords move into an apartment near his own house 'until a short time, he said, until the chicken house was completed,' and hired Bradford as foreman, 'planting crops and things, and doing the ranch work.' Bradford worked for defendant for $150 a month for four months; during this time 'work on the chicken house practically stopped' and 'there were no chickens in it at any time.' Defendant then discharged Bradford because 'He said I had been talking about my business and his business to other people'; Bradford admitted that he had done so. The Bradfords continued to live in defendant's apartment, and Bradford worked at other ranches, until February, 1952. Defendant said that Bradford occupied the apartment in lieu of receiving interest on his $5,500. During the ten months Bradford remained in the apartment he asked defendant about once a week for the return of his $5,500 and defendant repeatedly said, 'Well, it won't be long now,' or specified a date for payment, then said, 'I can't give it to you now, I have got other deals on.' Defendant finally repaid the $5,500 to the Bradfords on October 31, 1952.

The evidence as to defendant's obtaining $1,000 from Mr. And Mrs. Reinders on or about August 30, 1951, as charged in Count 2, shows a transaction with defendant materially similar to that of the Bradfords. Reinders gave defendant his check for $1,000 on August 29, 1951, pursuant to an agreement similar to that above summarized between defendant and the Bradfords. The Reinders moved to defendant's ranch on September 15, 1951. No chicken ranching was carried on during Reinders' stay. He worked for defendant for a weekly wage until March 2, 1952. He received $500 of his $1,000 from defendant on March 21, 1952, and the remaining $500 on November 19, 1952, just after Reinders had testified before the grand jury as to this matter.

Defendant urges that the evidence does not support the findings of theft as to Counts 1 and 2 because, he says, it shows that the arrangements of defendant with the Bradfords and with the Reinders were joint ventures or partnerships; he cites the conflicting views of People v. Foss (1936), 7 Cal.2d 669, 670, 62 P.2d 372 ('The rule that a partner cannot steal from the partnership is, of course, well settled'; dictum, citing no authority), and People v. Cravens (1947), 79 Cal.App.2d 658, 662-663, 180 P.2d 453 ('In the few cases which we have found on the precise subject it has been held that the procuring of money to be contributed to the capital of a partnership of which the victim is a member cannot constitute the crime of obtaining money by false pretenses because the victim as partner retains an interest in the fund. (Citations from other jurisdictions.) We are not satisfied that proof that the wrongdoer afterwards converted the partnership property to his own use while the victim was still subject to the influence of his false pretenses would not constitute the crime of obtaining money or property by false pretenses').

Manifestly the money paid to defendant by the Bradfords and the Reinders, characterized in their agreements as a 'guarantee,' was not, as a matter of law, intended to become partnership of joint venture property; it was transferred to defendant...