Perry v. Superior Court of Los Angeles County

• Decision Date: 01 February 1962
• Citation: 368 P.2d 529,19 Cal.Rptr. 1,57 Cal.2d 276
• Court: California Supreme Court
• Parties: , 368 P.2d 529 John Woodford PERRY, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The People, Real Party In Interest. L. A. 26644.

Page 1

19 Cal.Rptr. 1

57 Cal.2d 276, 368 P.2d 529

John Woodford PERRY, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

The People, Real Party In Interest.

L. A. 26644.

Supreme Court of California, In Bank.

Feb. 1, 1962.

John Woodford Perry, in pro. per., petitioner.

No appearance for respondent.

William B. McKesson, Dist. Atty., Los Angeles, Harry B. Sondheim, Pacific Palisades, Harry Wood and Robert J. Lord, Deputy Dist. Attys., Los Angeles, for real party in interest.

WHITE, Justice.

By this proceeding in prohibition petitioner challenges the jurisdiction of the Superior Court of Los Angeles County to try him upon an information filed by the district attorney in said court wherein petitioner was charged with the crime of grand theft allegedly committed by means of false representations made to obtain a loan of $800. (Pen.Code, §§ 484, 487.)

It is the contention of petitioner that he was held to answer following a preliminary examination at which the evidence was insufficient to establish reasonable or probable cause that a crime was committed or that petitioner was guilty thereof.

The sole question presented to us is whether the evidence adduced before the committing magistrate was sufficient to hold petitioner to answer for the offense of grand theft by false representations.

The record reveals that at the preliminary examination the complaining witness, Edna Elizabeth Joslyn, testified that she was introduced to petitioner by a fellow worker in the office in which she was employed. The fellow worker, Alvin Fredrickson, was a life insurance salesman and apparently had learned of petitioner's desire for a loan while attempting to write insurance on the latter's life.

Miss Joslyn testified that on March 23, 1961, there was a three-way telephone conversation between herself, Fredrickson, and petitioner. She further testified that when Fredrickson asked, "You want a loan of $800 for a week?", petitioner responded, "Yes." Her testimony continued: 'And I said, 'I understand you will give me a demand of a thousand dollars on an escrow of a second loan on a piece of property that you own at 3660 Aureola * * * which is valued at $72,000.' Q: What did the defendant say? A: He said, 'Yes.' Q: He stated he owned the property at this 3660 A: He answered me in the affirmative that he did, yes. And then I said, 'Well, I would like to be assured' as he told Mr. Fredrickson that the Atkins Properties was handling his loan is escrow 'I would like to be assured that somebody from the Atkins Property have this escrow.' (Petitioner) said, 'I will introduce you to Mr. Williams and he will tell you.' So Mr. Williams came on the phone and I said, 'Mr. Williams, I want to be assured of this escrow. Does Mr. Perry have an escrow about to be paid within a week on this second loan of this property on Aureola?' And he said, 'Yes.' I said, 'Do you know of any * * * obstacles that might prevent this money being paid to him out of this escrow?' And he said he didn't. So I said, 'Well, may I place a demand for a thousand dollars against this escrow?' And he (Williams) said, 'Yes."

Miss Joslyn also testified that while she was obtaining the money, petitioner held a document in his hand and stated: "This is my loan with the Great Western,' because I thought he was showing me that his property, he was able to pay $34,000 and (it) had already been established that he had a $34,000 loan with the great Western through Mr. Fredrickson.' The complaining witness further stated: 'After we left the bank where I gave him the money, and we went out to his car and I had demanded that I have a copy of this escrow, and he said he had it in his car, and he gave me * * * my copy, and he had put it in an envelope, * * * and wanted me to mail it. And I said, 'No, I want to go down there and deposit it myself.' And he didn't seem at all pleased about that, but he would rather I mail it. I said, 'I would rather go and deposit it.' So he said he would follow us down there. * * *'

The escrow demand, as introduced in evidence, read as follows: 'Demand on Escrow * * * March 24, 1961, to the Atkins Properties, 3734 * * * West Adams Boulevard, Los Angeles, Re loan, John Woodford Perry. You are hereby authorized to pay from the loan of $12,500 the sum of $1,000 directly to Edna E. Joslyn. This assignment is irrevocable unless cancelled in writing by Edna E. Joslyn.' The latter document bore the signature, 'John Woodford Perry.'

While at the office of Atkins Properties, Miss Joslyn testified that she learned through Mr. Williams, the individual who had earlier confirmed by telephone the prospect of petitioner's obtaining a second loan on the Aureola property, that the loan was to be deferred 15 days. Miss Joslyn stated: '* * * when we got outside, I asked Mr. Perry what this document why his loan was deferred for 15 days and to explain it to me. And he said, 'Well, * * * that is why I didn't want to come down here. I wanted you to mail this because they are going to get me a larger amount. I turned down the loan, the present loan I had, because it wasn't large enough.' * * * And then I said, 'Well, when do I get my money?' And he said, 'Give me five working days and, * * * if you don't get it out of this escrow, I will get the funds for you somewhere else."

No payment was made to the complainant within the five days. On the fifth day Fredrickson delivered to Miss Joslyn petitioner's personal check for $1,000, which Miss Joslyn testified she regarded as 'just additional security.' She explained: 'The importance I attached to was this escrow. I never attempted to cash that check. * * *' After the lapse of the agreed-upon period of time, the complaining witness testified that she was told by petitioner that he could not raise the money to pay the aforesaid $1,000 except by paying a lending party an exorbitant amount of interest for a short-term $1,000 loan. Following a subsequent meeting with petitioner the latter gave the complainant a written demand on Atkins authorizing payment to Miss Joslyn of $1,200 out of the $12,500 loan to be negotiated by Atkins for petitioner on the Aureola Street property.

The complaining witness further testified that she was never repaid any part of the $800 she loaned to petitioner. She also stated that while she made numerous demands on personnel at Atkins Properties for the name of the company actually holding the 'first escrow' involving the Aureola property, she was 'always referred' to petitioner. But she stated that she had not been able to obtain from petitioner the name of the holder of the prior escrow on the Aureola property, and that: 'After much questioning, Miss Ginns (of Atkins Properties) gave it to me * * * very many weeks afterwards.'

When the court asked Miss Joslyn, 'Did you or did you not rely upon that representation made by the defendant that he owned that (Aureola) property?', she replied: 'Well, to be perfectly frank with you, if we are going to separate that from the preliminaries, everything depended on what the Atkins people assured me that he had a loan being due to him in cash within a week. That was where I hinged my whole decision.'

Matt P. Flynn, who managed the property at 3660 Aureola, testified that during November 1960 he negotiated with petitioner concerning the latter's purchase of that property, and that pursuant to those negotiations the Aureola property was 'put into escrow.' That escrow appears to have originated on approximately November 15, 1960, and was to exist for 30 days. Flynn testified that petitioner made some deposits in that escrow, but apparently the latter's full obligations under that escrow agreement were never fulfilled. Flynn stated that during December 1960 and January 1961 he conversed with petitioner concerning the escrow. When Flynn was awsked, 'And did you ever (then) state to Mr. Perry that you were thinking of closing the escrow on the Aureola property?', he responded, 'Yes.' Flynn continued: 'It was either expressed or implied that we must cancel out the escrow if he didn't make his checks good that were on file in the escrow company.'

On February 8, 1961, Flynn terminated the escrow by letter to Washington Escrow Company, the holder of that escrow, and Flynn testified that on approximately February 15, 1961, he received from Washington Escrow Company an acknowledgment of termination of the escrow. When Flynn was asked, 'From the period of February 15, (to) March 23, or 24, (1961), did you have any further negotiations with Mr. Perry in regard to this property on Aureola?', he answered, 'No. * * *'

Alvin Fredrickson testified that prior to March 23, 1961, petitioner had listed the Aureola property on a life insurance application as an address to which petitioner intended to move in the near future. Fredrickson also testified: '(Petitioner) had volunteered the information that he had an escrow, and * * * I had been licensed to see business opportunities and I had a slight familiarity with escrows in the State of California, and usually they are good collateral if you can put a claim against a valid existing escrow. And Miss Joslyn had displayed an interest in lending him money if she could establish something that would be sufficient security in her mind. Q: Now, did you question the defendant as regards the property that was in escrow? A: Yes. I asked him if this was the same piece of property that was mentioned in his life insurance application, and he assured me it was.'

Fredrickson confirmed that he had participated in petitioner's telephone conversation with Miss Joslyn on March 23, 1961, and he was asked to relate that conversation. He responded: 'Well, he said he had this piece of property under which Great Western Savings and Loan had lent him $34,000. * * * This was the property on Aureola. * * * Well, I said on the basis of this escrow, Miss Joslyn would be interested in lending him the money. * * * Then we...