People v. Sprado , 72 Cal. App. 582 ( 1925 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The defendant, upon an information filed in the superior court in and for the county of Sacramento, was charged with and tried for felony embezzlement and convicted of petit embezzlement and thereupon sentenced to serve a term of six months in the county jail of the said county. He duly made an application for a new trial, and the same was denied. He prosecutes this appeal from the judgment of conviction and the order denying his motion for a new trial.

The information was based on section 508 of the Penal Code, which provides: "Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement."

Section 514 of said code provides that "every person guilty of embezzlement is punishable in the manner prescribed for feloniously stealing property of the value of that embezzled."

Section 487 of said code provides: "Grand larceny, is larceny committed in either of the following cases: 1. When the property taken is of a value exceeding two hundred dollars; . . .," and section 488 provides that "larceny in other cases is petit larceny." Section 489 of said code fixes the penalty for grand larceny at "imprisonment in the state prison for not less than one nor more than ten years," and section 490 provides that the punishment for petit larceny shall be by "fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding six months, or both."

The information charges that the defendant "on the ____ day of February, A.D. 1924, in the said county of Sacramento, in the said state, . . ., was then and there the clerk, agent, and servant of Kimball-Upson Company, a corporation, . . ., and doing business in the county of Sacramento, and then and there by virtue of his said employment as such clerk, agent and servant, then and there came into his possession, care, custody and control of him, the said Hugh R. Sprado, radio equipment of the value of $246, in gold coin of the United States, the personal property of the said Kimball-Upson Company, . . ., and he, the said Hugh R. Sprado, after the said radio equipment had come into his possession, care and custody, as aforesaid, did then and there, to-wit, in the City of Sacramento, County of Sacramento, State of California, on said ____ day of February, A.D. 1924, unlawfully, fraudulently, and feloniously convert, embezzle and appropriate the same to his own use, not in the due and lawful execution of his trust as such clerk, agent and servant," etc.

The points made for a reversal, stated in the language and the order in which they are stated in appellant's brief, are: "1. That the verdict of the jury is not direct and certain and cannot be considered by the court; 2. That the evidence does not support the verdict; 3. That the errors of the trial court were prejudicial to appellant; 4. That the court erred in denying defendant's motion for an instructed verdict after the prosecution had concluded its case."

[1] 1. The verdict reads as follows: "We, the jury in the above-entitled cause, find the defendant Hugh R. Sprado guilty of the crime of petit embezzlement included within said charge of embezzlement as charged in the information, and hereby fix the value of the property then and there embezzled under $200 and recommend that probation be granted defendant."

The recommendation of probation for the accused was disregarded by the court, but that fact is inconsequential, in so far as are concerned the points urged against the validity of the verdict, as above explained. The court delivered to the jury the several written forms of verdict covering any conclusion, within the record as made by the information and proofs, which they might, upon a consideration of the case, conceive it to be their duty to reach and declare. Among the forms so submitted to the jury was the following: "We, the jury in the above-entitled cause, find the defendant Hugh R. Sprado, guilty of the crime of embezzlement as charged in the information and hereby fix the value of the property then and there embezzled at $ ____." It will be noted that the jury, in formulating their verdict, did not follow that form. The contention that the verdict is not direct and certain is predicated upon the fact that the jury did not specifically find and fix the value of the property alleged to have been fraudulently, and contrary to his trust, converted and appropriated by the defendant to his own use. There is no merit to the contention. [2] The crime of petit or misdemeanor embezzlement is, admittedly, embraced within the crime of embezzlement as charged in the information, and the jury having determined that the defendant was guilty of the lesser offense, it was, of course, necessary that they should so declare in their written verdict, but it was not necessary that the finding in that regard should be in any particular form of language. If, in such case, the verdict as returned is in language sufficiently clear to indicate beyond any doubt that the accused has been found guilty of the lesser offense than that directly charged in the information, it is enough. The verdict fully measures up to this test. It is not necessary that the jury should have specifically found and fixed the value of the property. The evidence might have been such, according to the jury's view thereof, that the triers could not have fixed precisely or even with satisfactory approximation the value of the property. [3] Again, it might happen, as probably it did happen in this case, that the jury, after considering the evidence as to value, entertained a reasonable doubt upon the question whether the property was of value amounting to more or less than $200, but were yet not able to fix the exact value thereof, and, if so, it was their duty to give the defendant the benefit of such doubt, and, being convinced by the evidence that he had embezzled the property, find him guilty of the lesser and not of the higher offense charged. If, therefore, the general finding as to value was all that there was to the verdict as an indication of the crime of which it was the design and intention of the jury to find the defendant guilty, no one then reading the verdict or hearing it read, having in view the fact that for the lesser offense the penalty is the same as that authorized to be imposed for petit larceny, could for an instant doubt that in effect it declared that accused was guilty of the lesser offense of the two included within the crime as charged. But it will be seen that, as indicative of the intention to find the defendant guilty of the lesser offense, the verdict contains more than the mere finding as to value in the finding preceding that of value, to wit: ". . . guilty of petit embezzlement, included within said charge of embezzlement as charged in the information." This language itself, without regard to what the verdict contains as to value, makes it perfectly clear that the offense of which the jury found the accused guilty was that of misdemeanor embezzlement. [4] While misdemeanor embezzlement is not characterized in the code as "petit embezzlement," the word "petit," bears a well-understood legal signification as used in our Penal Code. In common parlance, it means anything petty or small. Employed in our code for the purpose of defining a crime, it means an offense of less gravity than a felony. For instance, larceny, as seen, is divided by the Penal Code into grand and petit, the first a felony, punishable by imprisonment in the state prison, and the latter a misdemeanor, punishable by fine or imprisonment in the county jail, or by both fine and imprisonment. Hence, the designation in the verdict of the lesser of the two offenses included within the crime charged in the information as "petit embezzlement" is not at all inappropriate. Thus at once there is conveyed to the mind the thought that the smaller or lesser and not the greater of the two offenses so charged is referred to. It may be added that the trial court experienced no difficulty in determining from the verdict the legal effect and scope thereof, for the judgment of sentence was in accord with the penalty authorized in cases of misdemeanor embezzlement. So, if the evidence sufficiently disclosed that the accused was guilty of embezzlement, he suffered no prejudice from the awkward form of language in which his guilt was declared.

2. The verdict is sufficiently supported. The evidence shows that the defendant was, for several years and down to March 1, 1924, in the employ of the Kimball-Upson Co., and as such was manager and in charge of the radio equipment department of said corporation; that he was permitted by the corporation to take radio sets from the store for the purpose of testing them, he being required to charge against himself on the books such sets as he might so take; that, previously to the last of February, 1924, he was notified by the corporation, through an authorized officer thereof, that, after the said last day of February, his services for and in connection with the corporation were to terminate or cease; that, on the twenty-eighth day of February, 1924, he was asked by Mr. Kimball, a member of said corporation, whether every article of merchandise he had theretofore taken from the store had been returned to the store, to which question the defendant returned an affirmative answer. The evidence further shows that the particular radio set with the wrongful conversion of which he is charged had not been at that time, nor was it at any subsequent time, returned to the store by the accused. It was also shown that, in the month of April, 1924, the defendant sold to one Rasmussen a radio set for the sum of $256. Rasmussen identified the set shown him in court by the district attorney as the one he purchased from defendant at the time mentioned and which had previously been identified by the witness Kimball, president of Kimball-Upson Co., as the set which the defendant had taken from the store of the corporation while he was manager of the radio department thereof. It was further shown that no record of the removal of said set from the store had ever been made in the book used for that purpose.

The defendant made no denial of having the radio set in his possession at the time he severed his connection with the Kimball-Upson Co., or that it belonged to the latter. He did deny, however, that he was asked by Kimball or any other person connected with the corporation whether he had returned to the store all the merchandise he had removed therefrom. He stated that he retained possession of the property with the consent of and understanding with one Deatrick, who succeeded him (defendant) as manager of the radio department of the corporation, that he was to sell the set and pay the proceeds of the sale to the corporation; that in April, 1924, he sold the property to Rasmussen for $256 and received payment therefor in the form of a check, which, at his request, Rasmussen drew in the name of his (defendant's) wife; that he did not turn the money received for the set over to the corporation until the month of September, 1924, after investigation was started to ascertain the whereabouts of the set and when a demand was for the first time made upon him for the payment of the money. He stated that his procrastination in the matter of the payment of the money received for the radio set was due to the fact that no bill for the property or no demand for the money so received had been sent to or made upon him by the corporation. Deatrick positively denied giving his consent to the retention by defendant of the radio equipment and stated that, while he knew that a radio equipment was missing from the store, he did not know with certainty that defendant had possession thereof; that after he had learned that the defendant had the set in his possession, he, with other employees of the corporation, proceeded in an attempt to secure either the radio set or the money paid to the defendant on the sale thereof. Deatrick also testified that when he first interviewed the defendant concerning the property the latter made to him three different statements regarding his possession of the property. One of these statements was to the effect that B.A. Mitchell, assistant general manager of the corporation, had given him (defendant) permission to retain and dispose of, if he could, the property. Said Mitchell denied, however, that he gave any such permission to defendant. He said that he asked defendant how and when he got possession of the set and that the latter said that in the month of January he had it in his possession at his home, that he returned it on January 31st for the purpose of having it inventoried with the other property in the store, and that immediately thereafter and before leaving the store he had again taken it with him and had retained it until he sold it.

The foregoing is a sufficient statement of the testimony to show that the verdict is well buttressed, evidentially. [5] But the specific point urged under this assignment is that, to establish the crime of embezzlement against the accused, it was necessary to show not only that he had possession of the articles constituting the radio set, but that he conceived or formed the intent fraudulently to convert them to his own use prior to the date of his retirement from the service of the corporation, or, in other words, while he was still in the employ of the corporation. We do not conceive this to be a correct view of the law. The statute (sec. 508, Pen. Code) upon which the information herein is founded declares, as will be seen, that every clerk, agent, etc., who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, "any property of another which has come into his control or care by virtue of his employment as such clerk,agent, or servant," is guilty of embezzlement. It is clear that it is wholly immaterial under said section at what time the property has been fraudulently appropriated by such clerk, agent, or servant, or at what time the intent so to appropriate it may be formed — whether before or after his employment as such clerk, etc., has ceased — if it be shown that such property has come into his control or care by virtue of his employment as such clerk, etc. As to the particular property belonging to another, which has come into the control or care of a clerk, agent or servant, by virtue of his employment as such clerk, agent, or servant, such clerk, etc., so long as he retains the control or care of such property, is the agent of the owner thereof, even though his employment as such clerk or servant or agent has ceased. But, aside from these considerations, the testimony to the effect that, when asked by the president of the corporation, just prior to his final severance from connection with the corporation as an employee thereof, whether he had returned to the store and the possession of the corporation all the articles of merchandise he had on prior occasions removed from the store, the defendant answered that he had, and the further testimony that, after he had terminated his connection with the corporation he sold the radio set, afforded a very strong inference that the defendant had formed the intent to appropriate the set to his own use either before or on the day his employment with the corporation ceased. Indeed, we think this testimony is sufficient to support the conclusion, if it were necessary to concede that such conclusion is of material consequence in determining whether the verdict stands secure against successful assault, that the intent to appropriate the property was formed by the defendant during the course of his employment as the manager of the radio department of the corporation.

[6] 3. Certain rulings assigned as erroneous and prejudicial to the rights of the accused require consideration herein. The district attorney, calling the witness Kimball, after the defendant had closed his case, asked said witness whether he had a conversation with the defendant on the twenty-ninth day of February, 1924, in the course of which he (witness) asked the defendant "if he had any of your merchandise in his charge," and to which question the defendant answered in the negative. To that question the defendant objected upon the ground that it did not call for rebuttal testimony, and, further, because the proper foundation had not been laid for the proof of such conversation, in that the "time, place and persons present" were not stated or given. Assuming that the testimony was not strictly rebuttal, it was, nevertheless, relevant and material, and we cannot say that it would be an abuse of the court's discretion in allowing it, although the proper practice, when testimony is not rebuttal, but is offered after the party against whom it is offered has closed his case, is for the party offering it to ask permission to reopen his case for that purpose. In all such instances, or at least as a general rule, where the testimony is relevant and material, and not cumulative of other testimony ample to support the fact to the proof of which the alleged rebuttal testimony is addressed, such motions are allowed, and doubtless in this case, as we may assume from the ruling allowing it, the court would have granted such motion had one been made by the district attorney. So, the testimony being relevant and material, it cannot be said that the defendant was prejudiced as a result of the ruling allowing it. We have assumed, without intending to hold, that the testimony was not rebuttal in the technical sense.

[7] It was not necessary to show, as a prerequisite to the introduction of testimony of the conversation in question, the place where, the persons present and the time when the conversation took place. The question calling for the conversation was not for impeachment purposes. It called for testimony of a substantive fact, or a statement by the defendant not amounting to a confession but merely what is technically called in law an admission — that is, a statement which might be pregnant with the admission of a circumstance which, considered with other facts and circumstances, may tend to the establishment of the guilt of the accused. Of course, the defendant was at liberty, on cross-examination, to inquire into the particular circumstances under which the conversation occurred, including the time and the place and the persons present.

[8] It was developed by the prosecution in making its case that the party to whom the defendant sold the radio set paid for the same by a check drawn in the name of defendant's wife. The witness Rasmussen, to whom the radio set was sold, testified that the check was so drawn at the request of the defendant himself. The attorney for the defendant sought to secure an explanation from his client of the reason for having the check made out in his wife's name, but an objection by the district attorney to the question designed to elicit that information was sustained. When arguing the case to the jury the district attorney put special emphasis on the fact that the check was so drawn, and, in effect, declared that it was a strong circumstance tending to show an effort on the part of the accused to cover up his crime, or to prevent, as far as it might, disclosure of the fact that the radio set was not the property of the Kimball-Upson Company. No good reason occurs to us why the court refused to allow the defendant to explain how he came to have the check drawn in his wife's name. Whether he could have explained the circumstance in a plausible or a reasonable way is not material upon the question of the admissibility of the testimony thus sought to be brought out by the defendant. It was a circumstance more or less of an incriminatory nature, when considered by the light of the other facts and circumstances of the case, and the accused was entitled to explain it, if he could, and, of course, it would have been for the jury to determine whether the explanation was or was not a satisfactory one or whether it would or would not have the effect of destroying its apparent inculpatory force. In brief, the question was proper cross-examination and should have been allowed. But the guilt of the defendant seems to have been conclusively shown by the evidence, and, therefore, no miscarriage of justice could have followed from the ruling. (Sec. 4 1/2, art. VI, Const.) [9] Of course, the district attorney in his argument before the jury was within his rights when he called attention to the circumstance of the check having been drawn at the request of the defendant in the name of the latter's wife. The fact that it would be error for a court to refuse to allow a defendant to explain, if he desired to and could do so, some competently presented circumstance which might damage his defense, would not constitute a reason for denying to the district attorney the right to make the most of such circumstance in his argument to the jury as in support of the theory of guilt, and, as we have stated, the circumstance here being considered was relevant, material, and competent.

[10] The defendant, on cross-examination, was asked by the district attorney whether, prior to July 1, 1922, he purchased or rented a phonograph equipment from the "Hauschildt Music Company" under the name of Lewis, stating that he was a member of the Olympic Club of San Francisco, which question he answered in the affirmative. After the answer was returned defendant's counsel moved to strike the answer out "for the purpose of making an objection," and the motion being allowed, then objected to the question on the ground that it was not cross-examination and that the question was incompetent, irrelevant, and immaterial. The question was improper and the alleged testimony sought thereby to be elicited wholly inadmissible. But there is nothing either upon the face of the question or the affirmative answer thereto which could have tended to reflect upon the character of the accused but what might be implied from the fact that, at the time of the transaction referred to, he assumed a name different from that under which he was proceeded against in this case. There was nothing wrong, so far as the question and the answer upon their face show, in the purchasing or hiring of the phonograph. The defendant himself seems to have regarded the transaction as one the occurrence of which he was not afraid to admit, for he appears to have answered the question unhesitatingly, even before his counsel could interpose objection thereto. Indeed, it may well be concluded that the fact that the purchasing or hiring of the phonograph was, so far as anything to the contrary is shown here, perfectly legitimate, would seem to negative rather than to carry the implication of suspicion or wrong or guilty knowledge with which the fact that an accused has committed some wrongful act under a pseudonym is ordinarily pregnant. But, waiving consideration of that suggestion, it certainly cannot be held, in view of the large amount of proof of the defendant's guilt, that the question and the answer thereto, even when put side by side with the other errors pointed out by the defendant and so considered, produced a miscarriage of justice in the instant case.

[11] There is absolutely no ground for the complaint that the court erred in refusing, in response to objection by the district attorney, to permit defendant to give the substance of a conversation with the witness Deatrick, at the home of the former, a few days after the defendant had left the employment of the corporation, in the course of which conversation Deatrick, so the defendant testified, gave the defendant permission to retain possession of the radio equipment for the purpose of disposing of it. The objection to the testimony was upon the ground that Deatrick had not been shown to be the agent of the corporation at the time the conversation was had, and, therefore, not shown to have the authority to bind the corporation to any arrangements he might have made with the defendant as to the radio set. The objection was technically well founded; but later it was shown that Deatrick was the agent of the corporation, with authority to negotiate arrangements with others as to articles of merchandise which were sold by the Kimball-Upson Company, and upon that showing the court allowed the defendant to state the conversation inquired about by his attorney, and he (defendant) did state said conversation or the substance thereof.

Other alleged errors founded upon the rulings of the court receiving and excluding certain evidence are complained of. These assignments we have carefully examined and have found no merit to many of the objections, while, as to others, the errors are so inconsequential that, when compared to the vast amount of proof of guilt, it may well be declared, as we do declare, that they were innocuous in their effect upon the substantial rights of the accused. No miscarriage of justice followed from the errors now referred to.

[12] Counsel for the defendant, in their brief, say: "The court's attention is also called to the rulings of the trial court in refusing to give the instructions asked for by defendant and which are numbered 7, 11, 12 and 13." This is all that is said by the defendant in relation to said instructions. Nowhere is it pointed out wherein the instructions were not properly rejected. It is not for this court to examine the record to determine whether the instructions were pertinent, or, if pertinent, whether they were or were not covered by the general charge of the court. It was the duty of counsel to show this court how the court erred in refusing to give the instructions. (People v. Chutnacut, 141 Cal. 682, 685 [75 P. 340];People v. McLean, 135 Cal. 302, 309 [67 P. 770]; People v. Cebulla, 137 Cal. 314, 317 [70 P. 181].)

[13] There is a general criticism throughout the brief of counsel for the defendant of the conduct of the court and the district attorney in the trial of the case, it being asserted that both those officers were guilty of misconduct. We have read the record carefully and cannot say that the court and the district attorney transcended the line of their duty in the management and the trial of the cause. Of course, it is to be said that in all warmly contested cases, particularly those involving prosecutions under the criminal laws, now and then there will leave the lips of either the judge or district attorney some remark or remarks which should not go before the jury. Unless, however, it can justly be said that such remarks are so grossly improper as irresistibly to lead to no other conclusion than that the rights of a party to an action or the defendant in a criminal case were thereby seriously prejudiced and he, therefore, denied a fair and impartial trial according to the law of the land, then the result reached below cannot for that reason be set at naught.

The claim that the court should have advised the jury to find the defendant not guilty is answered by the discussion above.

The judgment and the order appealed from are affirmed.

Plummer, J., and Finch, P.J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on June 10, 1925, and the following opinion then rendered thereon: