Page images
PDF
EPUB

counted the money and compared the stubs of the tickets found in the box at the door with the money in the drawer, and found the money was short $142.50. The prices at which the different tickets were to be sold were not placed on the tickets or stubs.

Henry testified. over the objection of defendant, that at the time, December 5th, he made an entry in his account book of the tickets sold, from the stubs in the box, for the "Florodora Show," which he testified to be as follows:

10 seats at $2.00 each....

325 seats at $1.50 each...

193 seats at $1.00 each....

48 Box seats at $1.00 each...

247 Balcony circle seats at $.75 each.. 215 Gallery seats at $.50 each... 7 admissions at $.50 each.

Making a total of......

20.00 487 50 193 00 48 00 185 25 107 50 3.50

.$1,044 75

The amount of money in the till or money drawer was then but $902.25. Different prices were indicated by different colored tickets. Both the unsold tickets and the stubs which Henry says he counted in the box at the door of the theater, he destroyed at the end of the performance when he had made the count. He also testified from an entry in a book that he paid the "Florodora Co." $835.80, 80 per cent. of $1,044.75.

The foregoing is the evidence, and the only evidence, so far as can be learned from the transcript, by which it was sought to show that defendant collected and had in his possession from the sale of those tickets the sum of $1,044.75, and the only evidence tending to show that he appropriated $142.50 of it. In order to make out a case of embezzlement of property by an agent, four things must concur, and each must be proven beyond a reasonable doubt: (1) That the defendant was such agent. This fact is admitted in this case. (2) That the property charged to have been embezzled,must have come into the hands of the defendant as the property of his employer. (3) That he received it in the course of his employment; and (4) that he appropriated it to his own use with intent to steal it. Pen. Code, §§ 506. 508: Ex parte Hedley, 31 Cal. 108: People v. Gordon, 133 Cal. 538, 65 Pac. 746, 85 Am. St. Rep. 174; 10 Am. & Eng. Ency. of Law, 983 (2d Ed); Pullan v. State, 56 Am. Rep. 21. The money received for the sale of tickets was to be distributed as follows: 80 per cent. of the gross receipts to the Florcdora Company and 20 per cent. of the gross receipts to be retained by Hall, and, until this division was made, the whole of the proceeds of the sale of tickets would be the property of Hall, and, therefore, if defendant received the money he is charged with embezzling. it was the property of Hall as charged so far as the purposes of this case are concerned. The first question then, is: Did defendant receive the $142.50? As has been seen there is no direct or positive evidence that he did, and we are simply left to infer he did because he

sold tickets at the prices at which they were to be sold and put the money he received therefrom in the money drawer; that Henry found about $600 in the drawer when he took charge, and the evidence of Henry that when he counted the money when the ticket office closed there was $902.25 in the drawer and that when he counted the stubs he found there should have been $1,044.75 there. The tickets were sold at various prices for seats in different parts of the theater, so that to know the aggregate of money which should have been taken in it would be necessary to know just how many tickets of each kind were sold. This could be ascertained in only two ways: (1) To know just the number of tickets of each kind in the rack when the selling began and then count what remained after the selling closed; and (2) to count the stubs of each kind of ticket found in the box at the door of the theater and in each case taking into account passes issued. Henry testified that he concluded there was about $600 in the cash drawer when he commenced selling tickets the afternoon of the 5th, and no accurate count was made until the ticket selling had closed that evening. He then testified, over the objection of defendant, from a imemorandum he says he made at the time, that counting the tickets unsold and the stubs in the box, there should have been $1,044.75 in the cash drawer when in fact there was but $902.25. He further says that immediately upon making the count and settling with the show people, he destroyed the stubs and the unsold tickets. Henry says he could not tell how much money was in the till that night when he came to settle with the show people without referring to his memorandum. Under all the circumstances shown in this case, we say it was error to permit Henry to testify from his memorandum. He and defendant were both the agents of Hall, both had sold tickets for that same show that day and all the money both received should have been in the drawer. Defendant testified that he put in the money drawer all the money he received from the sale of tickets, and the evidence shows he had previously borne a good reputation. Henry continued to sell tickets that afternoon, but he does not pretend to say he put all the money he received into the money drawer. Having destroyed the only evidence by which it could be ascertained how much money there should have been in the money drawer, if all the money to represent the tickets sold had gone into the money drawer, and he being equally liable with defendant for this money, he should not have been permitted to testify from the memorandum made by him even though made at the time, for, under the circumstances, it is no more nor less than a self-serving declaration. To further strengthen Henry's position that defendant stole the $142.50, he testifies, over defendant's objection, from what he says is the receipt of the Florodora Company's manager for $835.80,

which would be 80 per cent. of $1,044.75, the amount which he says, froin his memorandum, should have been in the money drawer, but the receipt was not put in evidence. The receipt of Henry Elsner, the manager of the Florodora Company, seems from the evidence to have consisted merely in signing his name in a book. This was the kind of evidence denominated "hearsay," and the most dangerous to a defendant in a criminal case, who is entitled to be confronted with the witnesses against him that he may cross-examine them. The prosecution deemed it important to show that the Florodora Company had received $835.80, which was 80 per cent. of $1,044.75, in order to support the statement in Henry's memorandum that that sum should have been in the money drawer. IIenry Elsner, for aught that appears, might have been brought into court to have testified.

There is absolutely no evidence tending to show that the defendant ever received more money for the sale of tickets than he left with Henry, except what may be inferred from Henry's memorandum and from what he says is Henry Elsner's receipt, and the evidence based upon these two instruments should have been excluded. It is true that after the cross-examination of Henry and the prosecution took him for redirect examination, he testified that he destroyed the stubs and unsold tickets because it was the custom to do so, and that he did not know they would ever be needed. But if there was a shortage in the money he knew it and had also suspected defendant of stealing it. From these facts and the further fact that having the same opportunity of taking the money as defendant had, he would most naturally have saved the evidence by which the crime might have been fastened upon defendant. The errors here pointed out. we think, entitle the defendant to a new trial.

The following testimony was given for and against the theory that the defendant fled: Henry testified that when he came to the ticket office between 12 and 1 o'clock of December 5th, defendant was there and that defendant said nothing about quitting, but soon put on his coat, and went out. Not returning by the middle of the afternoon, he made inquiry for defendant, and got no information as to where he was. Then Henry counted the money and concluded the money was not all there. IIe telephoned for defendant and remained in the office till 6 o'clock. At that time the defendant had four or five days' wages due him at $50 per month. When Henry did not find the defendant after inquiring at the newspaper offices, his hotel, and his usual haunts, some time that afternoon he reported to the police. Defendant testified that when he left the ticket office the afternoon of December 5th, he went to his hotel, laid down a half hour, then walked around town, and finally took the afternoon train for San Francisco, and did not know he was wanted by any one, and never knew until his arrest that

the officers were looking for him. He remained in San Francisco a few days, and went to Petaluma, where he remained for two months, and then went to Camp Meeker and remained in that vicinity-except a few times when he went to the city-until his arrest in July, 1905. During all this time he went by the name of George Hemple, met and talked with officers from San Francisco, and people from Stockton, and knew all the officers and constables about the places he frequented, knew the sheriff of Sonoma county, with whom he did business. That the reason he quit his employers in the unceremonious manner he did was that he had had words with Henry about his salary; that he wanted $75 a month and had been informed he would not get that, and had then told Henry he would quit, and thereupon left. There seems to have been no concealment or attempt on the part of the defendant to keep out of the way of the officers, and we do not think there was sufficient evidence of his fleeing from the place where the crime is alleged to have been committed, or that he attempted to conceal himself to prevent arrest. But as there was some evidence tending to show flight, the jury is left to determine the weight.

The court gave eight instructions of its own motion. Defendant assigns as error all of these. We have read these instructions over, and see no error in any of them. It is the duty of counsel to point out the specific instruction which he believes does not state the law, so that the appellate court may properly test the same.

The next error assigned is that the defendant requested two instructions, which the court modified and then gave. The first was as follows: "To warrant a conviction of the defendant the prosecution must prove so clearly and conclusively to your minds, not only that the defendant actually received the sum of $142.50 in cash over and above the sum left in the drawer at the theater, but that he thereafter feloniously, etc." The court cut out the words italicized in the above instruction, and inserted instead the words "beyond all reasonable doubt." In the other the language offered was as follows: "TO warrant a conviction of the defendant, he must be proved to be guilty so clearly and conclusively that there is no reasonable theory upon which he can be innocent when all the evidence in the case is considered together." The words italicized were stricken out and the following inserted in their stead: "beyond all reasonable doubt." In both of these instructions as the court modified the language, the jury was plainly informed that if the defendant was guilty the proof must satisfy their minds beyond all reasonable doubt of his guilt or he was entitled to a verdict of acquittal, and it seems to us the language tendered by the defendant could have no greater weight or significance. It amounts to but a choice of words in expressing the same thing. We see no error in this. How

ever, the court should give an instruction requested by a defendant which clearly expresses the law, in the language asked.

The court refused the following instruction, which is assigned as error: "I instruct you the defendant George Hemple is the only person on trial before you for this alleged offense, and that if you find from a consideration of all the evidence that it points as clearly to some other person, as the person who committed the crime in question as it does to the defendant, or if, after a fair and full consideration of all the evidence, the jury entertain a reasonable doubt as to whether the said George Hemple or some other person is the guilty party, then it is your duty to acquit the defendant."

A defendant is entitled to have an instruction given when it announces the law. responsive to every element of his defense shown by the evidence. The defendant testified to circumstances and facts that stand undisputed which showed that other persons than himself had opportunities of-in one instance taking the money from the till, and, in another-committing the crime of embezzling the same. On the 5th day of December, while selling tickets at the ticket office, he was also engaged in doing other work in another room across the entrance from the ticket window. This evidence was offered for no other purpose than to show that while defendant was attending to other duties away from the drawer where the money was kept, others had at least the opportunity, however slight, of "tapping the till" and stealing the money. Then, again, the witness Henry who had testified to having discovered the shortage had the same opportunity to appropriate the $142.50 as did defendant. He was but an agent of Hall himself, and handling Hall's money. The defendant proved a good character, and had testified that he sold the tickets at the proper prices, and put all the money received in the money drawer and that so far as he knew, it was all there when Henry took charge. I think that under the facts appearing in this case, this instruction should have been given, and it was prejudicial error to have refused it.

There are many errors assigned relating to the rulings of the court upon the admissibility of evidence, but seeing no prejudicial error in any not referred to here, we will not set them forth.

The order and judgment are reversed.
I concur: CHIPMAN, P. J.

I concur in the judgment: MCLAUGHLIN, J.

(Cal. App. 48)

KOYER v. BENEDICT et al. (Court of Appeal. Second District, California. July 3, 1906.)

1. APPEAL-NECESSARY PARTIES.

On appeal from a judgment foreclosing a mortgage by a subsequent grantee of the prop

erty who contends that the mortgage was void, his codefendants, the mortgagors, who executed the notes for the mortgage debt and might become personally liable therefor if such contention were sustained, are adverse parties on whom notice of appeal must be served. 2. SAME-SERVICE OF NOTICE.

Where it appears that the residence of necessary parties to an appeal is in the same place and was known to the appellants, notice of appeal cannot be served on them by mail, but service must be made at their residence, as required by Code Civ. Proc. § 1011, subsec. 2.

[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 2151, 21622164.]

Appeal from Superior Court, Los Angeles County; D. K. Trask, Judge.

Action by A. S. Koyer against Charles E. Benedict and others. Judgment for plaintiff, and defendant Stull appeals. Appeal dismissed.

Charles S. McKelvey and Gertrude Stull, for appellant. Will A. Harris and Harris & Harris, for respondent.

GRAY, P. J. This is an action upon a promissory note and to foreclose a mortgage given to secure said note. The mortgage and note were executed by Charles E. Benedict and his wife, Martha S. Benedict, to the plaintiff. Summons was duly served upon some 13 defendants, and the defendants so served seem to have defaulted, except the defendant Gertrude Stull, who answered the complaint; and, judgment having gone against her, she appeals from said judgment.

The plaintiff moves to dismiss the appeal upon the ground that no proper service of the notice of appeal was made upon the Benedicts. The Benedicts are interested in the result of the appeal herein, for the reason that if the judgment should be reversed, and the contention of the appellant that the mortgage is null and void be sustained on a new trial of the case, the Benedicts might be left personally liable on the note, with nothing to be derived from a foreclosure sale to satisfy any part of that liability. They were, therefore, adverse parties, and it was necessary that the Benedicts should have been duly served with the notice of appeal. Pending the hearing of the motion to dismiss the appeal, appellant obtained leave of this court to file affidavits showing said service. These affidavits were subsequently filed, and show that service of the notice was attempted to be made by mailing the same in Los Angeles, addressed to the Benedicts in Los Angeles, "at the corner of 20th and Barnard Park, * * * their said place of residence." It appears from this that the residence of the Benedicts was known to the parties making the service; therefore, the service could not be made by mail, but should have been made "by leaving the notice or other paper at his residence, between the hours of 8 in the morning and 6 in the evening, with some person of suitable age and discretion." Code Civ. Proc. § 1011, subsec. 2. The affidavits fail to show that

the parties "reside or have their offices in different places," so as to bring the case under section 1012 of the Code of Civil Procedure. On the contrary, the affidavits show that both parties reside in Los Angeles.

The affidavit of W. J. Ford, as we understand it, relates to a former attempted appeal, which was not perfected and is not before us.

The appeal is dismissed.

We concur: SMITH, J.; ALLEN, J.

(7 Cal. Unrep. 288)

GRAILAM v. BRYANT.

(Court of Appeal, First District, California. July 24, 1906.)

APPEAL-FINDINGS-CONFLICTING EVIDENCE

REVIEW.

A verdict based on conflicting evidence and sustained by the trial court, will not be reversed.

Appeal from Superior Court. City and County of San Francisco; M. M. C. Sloss, Judge.

Action by F. J. Graham against A. M. Bryant. From a judgment for defendant, plaintiff appeals. Affirmed.

George D. Collins and A. E. Ball for appellant. William Cannon, for respondent.

HARRISON, P. J. Action upon a promissory note. The cause was tried before a jury, and a verdict rendered in favor of the defendant. Plaintiff moved for a new trial upon the grounds that the verdict was not sustained by the evidence, and that certain errors of law were committed at the trial. The motion was denied, and from this order the plaintiff has appealed.

The signing of the note by the defendant was conceded, and the only issue presented to the jury was the want of consideration for making the same. Upon this issue there was a direct conflict of testimony between the defendant and the witness for the plaintiff with whom the defendant had the transaction in which the note was signed. It is unnecessary to recount this testimony, since the determination of the jury as to which of these witnesses was entitled to credit is conclusive. The jury were fully and clearly instructed as to the elements necessary to constitute a consideration for the note in view of the evidence before them, and no exception was taken to these instructions. The fact, moreover, that the trial court declined to set the verdict aside is an additional ground for us to hold that it was fully sustained by the evidence. The contract of the defendant in reference to the prosecution of her claim against the Adler estate was properly received in evidence as illustrative of the circumstances connected with her signing of the note sued

[blocks in formation]

AHLERS v. BARRETT.

(Court of Appeal, First District, California. July 23, 1906.)

1. LANDLORD AND TENANT-UNLAWFUL DETAINER-EVIDENCE-FINDINGS.

In an action of unlawful detainer, evidence held insufficient to sustain findings that plaintiff was entitled to possession, and for the recovery of a specified sum as rent.

[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, § 1248.]

2. APPEAL-ASSIGNMENTS OF ERROR-INSUFFICIENCY OF EVIDENCE-SPECIFCATIONS.

An assignment of error that there was "no" evidence to sustain, or tending to prove, the allegations of plaintiff's complaint, which the court found to be true, was not objectionable for failure to point out the respects in which the evidence was insufficient.

3. SAME.

A specification of error alleged that the evidence was insufficient to justify or support the decision and particularly finding No. 4, for the reason that there was no evidence that at the time of the commencement of the action there was due plaintiff from defendant for rent the sum of $150 or any other sum. Another specification recited that the evidence was insufficient to support the decision, and particularly finding No. 5, for the reason that there was no evidence that there was due or owing plaintiff from defendant for rent of the premises described, in addition to the sum named in finding No. 4. the sum of $300, or any other sum. Held, that such specifications were sufficient.

Appeal from Superior Court, City and County of San Francisco; J. C. B. Hebbard, Judge.

Action by Henry Ahlers against Minnie E. Barrett. From a judgment in favor of plaintiff and from an order denying defendant's motion for a new trial, she appeals. Reversed.

George A. Clough, for appellant. George H. Perry and Frank McGowan, for respondent.

COOPER, J. Appeal from judgment, and order denying defendant's motion for a new trial.

The complaint alleges that about September 1, 1902, Eleanor Sudden and others by verbal lease let to defendant the premises known and designated as "103 Eighth street," in the city and county of San Francisco, up to, but not including, the 1st day of May, 1903, at the monthly rent of $25 per month, payable monthly; that defendant entered under the lease, and ever since has continued

to hold and occupy the premises; that de-
fendant holds over and continues in posses-
sion without the permission of plaintiff and
contrary to the terms of the lease; that
plaintiff, on the 30th day of September. 1903,
notified the defendant in writing that the
tenancy of said premises would expire No-
vember 1, 1903, but that defendant continued
to hold possession notwithstanding demand
in writing was made by plaintiff for the pos-
session of the same; that more than three
days has elapsed since said demand, and
defendant has ever since failed and neglect-
ed to deliver up to plaintiff the possession
of the said premises; that the monthly rents
and profits of the premises is the sum of
$25; that about the 1st day of May, 1903,
the said Eleanor Sudden and others leased
the said premises to plaintiff by a written
lease for the term of three years from date,
under, and by virtue of, which plaintiff be-
came, and still is, entitled to the possession
of the said premises. There is no allegation
in the complaint that the defendant has ever
failed to pay the rent. Although it is alleged
in the complaint that the verbal lease to de-
fendant expired May 1. 1903, it is also al-
leged that the plaintiff notified defendant
that her tenancy would expire November 1,
1903. The defendant in her answer denies
the material allegations of the complaint;
denies that on the 1st day of May, or at any
other time, the said Eleanor Sudden and
others executed or delivered to plaintiff any
lease of said premises for a term of three
years or for any term; denies that by virtue
of any written lease the plaintiff is, or ever
has been, entitled to the possession of the
said premises; denies that the term for
which the premises were leased to her has
expired and alleges affirmatively that she
entered into possession of the premises under
a written lease from said Eleanor Sudden
and others, which lease is still in force and
effect, and under which she is still entitled
to the possession of the premises. The plead-
ings were verified. The court found that all
allegations of the answer are untrue; that
the amount of rent due from defendant to
plaintiff at the time the action was com-
menced was $150; and that the amount that
had accrued after the action was commenced
was the sum of $300, which said latter sum
should be trebled. Judgment was accord-
ingly entered for plaintiff for the possession
of the premises and for $1.050 and costs of
suit. Defendant claims that the evidence
is insufficient to support the findings, and
the claim must be sustained. The only evi-
dence offered in behalf of plaintiff was his
own testimony to the effect that he knows
the defendant, and that she lives on the
premises described. The defendant testified
that she was occupying the premises, and
had been so occupying them since 1900; that

a paper shown to her was the contract under which she went into possession of the premises. This is all the evidence in the case. The plaintiff showed no title or right of possession in himself. He showed no lease between himself and defendant, or anything to show that the relation of landlord and tenant ever existed between them. He did not attempt to prove that defendant was wrongfully occupying the premises, or that she had made default in the payment of rent. When defendant offered in evidence the writing under which she went into possession, the plaintiff objected to it, and the court sustained the objection. We are at a loss to comprehend the theory upon which the plaintiff submitted the case, or upon which the court made the findings.

Plaintiff contends that the evidence cannot be considered here because the specifications of insufficiency are not sufficient in law. The specifications are sufficient under the liberal rule now followed here. The first one states that there is no evidence to sustain, or tending to prove, the allegations of the plaintiff's complaint, which allegations the court found to be true. If there is no evidence, that is about all that could be said about it. It is not necessary to point out the respects wherein no evidence is insufficient to sustain a finding. It is specified that "the evidence is insufficient to justify or support the decision, and particularly finding 4, for the reason that there was no evidence produced at the trial to prove, or tending to prove, that at the time of the commencement of the action there was due from defendant to plaintiff for rent of the premises described in the amended complaint, the sum of $150, or any other sum." It is further specified that "the evidence is insufficient to justify or support the decision, and particularly finding 5, for the reason that there was no evidence offered at the trial proving, or tending to prove, that there is now due or owing plaintiff from defendant for rent of the premises described in the amended complaint, in addition to the sum named in finding 4, the sum of $300, or any other sum." There are 10 specifications in all, and they certainly called the attention of the plaintiff to the fact that defendant intended to claim that the evidence was insufficient as to the material findings. They were in the nature of a notice to plaintiff which must be regarded with liberality. American Type, etc., Co. v. Packer, 130 Cal. 459, 62 Pac. 744; Standard Quicksilver Co. v. Habishaw, 132 Cal. 124, 64 Pac. 113; Swift v. Occidental Mining, etc., Co., 141 Cal. 168, 74 Pac. 700; Bell v. Staack, 141 Cal. 186. 74 Pac. 774.

The judgment and order are reversed.

[blocks in formation]
« PreviousContinue »