People v. Swenson
| Decision Date | 30 September 1954 |
| Docket Number | Cr. 2543 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Alfred H. SWENSON, alias Howard Swensen, Defendant and Appellant. |
Orrin K. Airola, San Andreas, for appellant.
Gail A. Strader, Deputy Atty. Gen., for respondent.
Appeal from the judgment of conviction of the crime of embezzlement and from the order denying a new trial. Appellant was charged by information with the crime of embezzlement committed or or about the 8th day of May, 1953, in that the appellant fraudulently disposed of a 1953 Mercury automobile, which was then and there in the possession of said Alfred H. Swenson, alias Howard Swensen, appellant, under a contract of purchase not yet fulfilled.
The facts are these: Appellant, at the time of the commission of the offense, was employed as a salesman and manager for Loma Motors, in charge of that company's place of business at San Andreas. The principal place of business of Loma Motors was at Lodi, California. On March 3, 1953, Loma Motors sold to the appellant a 1953 Mercury Sport Coupe to be used by appellant as a demonstrator. Appellant made a down payment of $142.38, leaving a balance due after the addition of registration fees, etc., of $2,772. The contract of sale was the usual conditional sales contract containing the specific provision that title to the automobile should remain in the seller until all of the obligations of the purchaser were fully complied with and discharged. The contract contained the further provision that the purchaser should not sell or otherwise dispose of his interest in the automobile without the written consent of the seller. The contract was sold to the Anglo-California National Bank by Loma Motors, and the bank then became the legal owner. Under the terms of the original contract payments were to be made to the bank.
On May 8, 1953, the appellant sold the aforementioned automobile to one James L. Egan. At that time Mr. Egan turned over to the appellant as a trade-in a 1951 Mercury automobile and gave the appellant a check payable to the order of Loma Motors in the sum of $1,100. Later, on July 1, 1953, appellant and Mr. Egan entered into a statement of transaction in which it was shown that the trade-in allowance on the 1951 Mercury and the check for $1,100 constituted the full price of the car. The appellant never at any time notified Loma Motors or Anglo Bank that he had sold the 1953 Mercury. The check for $1,100 which appellant received from Mr. Egan, and which as stated was made payable to Loma Motors, was cashed by the appellant and deposited in his own personal account. The 1951 Mercury which appellant received from Mr. Egan he later sold to a Mr. Jackson. The proceeds from this sale were also pocketed by the appellant. Following the sale of the 1953 Mercury automobile by the appellant, he made several purported payments under the terms of his contract by means of checks. Some of these checks, however, were returned because of insufficient funds. Sometime in May or June, 1953, Mr. Christie, who at that time was general manager of Loma Motors in Lodi, discussed the matter of the 1953 Mercury with the appellant, at which time he asked the appellant concerning the whereabouts of the automobile and the appellant replied that someone was using it on a demonstration. A week or so later Mr. Christie again asked appellant where his demonstrator was, and was unsuccessful as to learning its location, except that it was not around the place of business. The Mercury automobile was repossessed by the bank in November, 1953, and turned over to Jack Geer, one of the original owners of Loma Motors. Loma Motors then paid the bank the remaining amount due on the contract.
As grounds for reversal of the judgment appellant makes three contentions: (1) That the information insufficiently charges the commission of the offense in that the information fails to allege that the defendant committed the acts 'with intent to injure and defraud the lessor or owner;' (2) that the evidence is insufficient to show fraud or concealment by the defendant; (3) that the court erred in giving certain instructions.
With reference to the first contention appellant states that the information did not charge him with an intent to injure or defraud the owner of the property, and that therefore the information was defective. The information, so far as pertinent to a determination of this case, reads as follows:
'That the said defendant, on or about the 8th day of May, 1953, at and in the county of Calaveras, State of California, did fraudulently dispose of a 1953 Mercury automobile, which was then and there in the possession of the said defendant under a contract of purchase not yet fulfilled, by a sale of the same to James L. Egan; and that the said Mercury automobile was then and there of a value in excess of Two Hundred Dollars ($200.00).'
The criminal offense with which appellant was charged and convicted is defined by Penal Code section 504a. That section in its entirety provides as follows:
'Every person who shall fraudulently remove, conceal or dispose of any goods, chattels or effects, leased or let to him by any instrument in writing, or any personal property or effects of another in his possession, under a contract of purchase not yet fulfilled, and any person in possession of such goods, chattels, or effects knowing them to be subject to such lease or contract of purchase who shall so remove, conceal or dispose of the same with intent to injure or defraud the lessor or owner thereof, is guilty of embezzlement.'
Section 952 of the Penal Code provides that in charging an offense, an indictment or information shall be sufficient if it contains in substance a statement that the accused has committed some public offense. The section provides also that the allegation in the information may be in ordinary and concise language without technical averments. It further provides that such allegation may be in the words of the statute or in any words sufficient to give the accused notice of the offense of which he is accused.
The gist of appellant's argument is that the clause at the end of section 504a which reads 'with intent to injure or defraud the lessor or owner thereof * * *' relates to the first part of the section, as well as to the second part of the section and hence it is argued it is necessary that an information contain the quoted language. Be this as it may, we are of the opinion that the language of the information in the instant case is fully sufficient under the provisions of Penal Code section 952. Even assuming that the clause quoted above refers to both parts of the section, the only requirement contained in said clause is that the removal, concealment or disposition of property held under a contract of purchase not yet fulfilled be done with intent to defraud the owner. The allegation that the appellant did a certain act fraudulently would inform the accused or any person of reasonable intelligence that the act was done with intent to defraud. While it is elementary that for one to be guilty of embezzlement he must have intended to deprive the owner of his property unlawfully, People v. Cannon, 77 Cal.App.2d 678, 176 P.2d 409; People v. Borchers, 199 Cal. 52, 247 P. 1084, we are of the opinion, nevertheless, that the word 'fraudulently' necessarily included the element of intent.
In People v. Talbot, 220 Cal. 3, on page 15, 28 P.2d 1057, on page 1062, the court stated the following as to the use of the word 'fraudulent' including the element of intent:
'One of the definitions of 'fraud' given by the Standard Dictionary is: 'Any act * * * that involves a breach of duty, trust, or confidence, and which is injurious to another, or by which an undue advantage is taken of another,' and an act is declared to be fraudulent that is characterized by fraud. * * *'
As to whether the word 'fraudulent' is synonymous with the phrase 'intent to defraud' it may...
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