« 이전계속 »
and afterwards fraudulently converts them to his own use; but where the possession is fraudulently obtained, with intent to convert the same to his own use and the owner does not part with the title, the offense is larceny.-People v. Howard, 31 Cal. App. 358, 160 Pac. 697.
3. The essential distinction between the crime of embezzlement and that of grand larceny is that, in embezzlement, the original taking of the property is lawful, while in grand larceny the original taking involves a trespass or is accompanied by a felonious intent to deprive the owner of the property so taken.-People v. Knox, 32 Cal. App. 158, 162 Pac. 407.
4. Of lottery ticket. – An information charging the larceny of a lottery ticket fails to state a public offense notwithstanding the drawing has taken place and the defendant ultimately collected more than fifty dollars on the ticket; such a ticket has no legitimate value, except as the evidence of a debt due from an enterprise which is denounced by law.-People v. Antonio Caridis, 29 Cal. App. 166, 154 Pac. 1061.
from the person of another, must exceed the sum of fifty dollars.--People v. Antonio Caridis, 29 Cal. App. 166, 154 Pac, 1061.
2. -Subdivision 3.-In such a prosecution, the defendant is properly convicted of grand larceny instead of larceny, where the property, which was the subject of the mortgage, consists of three heifers and two cows, the word "heifer" being synonymous with “cow" within the meaning of section 487 of the Penal Code, which declares the stealing of a "cow" to be grand larceny.People v. Phillips, 30 Cal. App. 31, 157 Pac. 1003.
492. 1. Larceny of written instrument-Construction. — Clearly this section contemplates and controls the value to be placed only upon written instruments which create some legal right and constitute a subsisting and an enforceable evidence of a debt. A lottery ticket has no relative value save as evidence of a debt due from an enterprise denounced by law and conducted in defiance thereof.—People v. Caridis, 29 Cal. App. 166, 154 Pac. 1061.
2. A lottery ticket, considered as a mere piece of paper, possesses perhaps some slight intrinsic value, which, however small, is sufficient to make the wrongful taking of it petit larceny.-People v. Caridis, 29 Cal. App. 166, 154 Pac. 1061.
3. An obligation which exists in defiance of a law which denounces it has, in the eyes of the law, neither validity nor value.-People v. Caridis, 29 Cal. App. 166, 154 Pac. 1061.
GRAND LARCENY. 1. Construction of section Subdivision 1. 2. -Subdivision 3.
1. Construction of section Subdivision 1. -It is essential to the commission of the crime of larceny that the property alleged to have been stolen have some value, intrinsic or relative, which, where grand larceny is charged and the property was not taken
$ 499a. STEALING ELECTRICITY A MISDEMEANOR. Every person who shall wilfully, and knowingly with intent to injure or defraud, make or cause to be made any connection in any manner whatsoever with any electric wire or electric appliance of any character whatsoever operated by any person, persons or corporation authorized to generate, transmit and sell electric current, or who shall so wilfully and knowingly with intent to injure or defraud, use or cause to be used any such connection in such manner as to supply any electric current for heat or light or power to any electric lamp, or apparatus or device, by or at which electric current for heat or light or power is consumed or otherwise used or wasted, without passing through a meter for the measuring and registering of the quantity passing through such electric wire or apparatus, or who shall, knowingly and with like intent injure, alter or procure to be injured or altered any electric meter, or obstruct its working, or procure the same to be tampered with or injured, or use or cause to be used any electric meter, or appliance so tampered with or injured, shall be deemed guilty of a misdemeanor.
History: Enactment approved February 23, 1901, Stats, and Amdts. 1900-1, p. 20; amended April 20, 1917, Stats. and Amdts. 1917, p. 150. In effect July 27, 1917.
§ 504a. Fraudulent removal of leased property embezzlement [new].
5. 8 503.
Instructions.—Where, in a prosecution EMBEZZLEMENT.
for grand larceny, it is contended that if
any crime was committed it was embezzle1. 2. Construction of section.
ment and not larceny, the following is a 3. Elements of offense.
correct instruction to the jury: "Embezzle4. Defenses.
ment is when the possession of the property 5, 6. Instructions.
has been acquired lawfully and bona fide As to distinction between embezzlement
and afterward fraudulently appropriated. and larceny, see, ante, C. C. P. pt., $ 484,
The gist of the offense of embezzlement is pars. 2 and 3.
the breach of trust reposed in the agent,
employee or bailee, by his principal, em1. Construction of section.—Property as mentioned herein and the following sections
ployer or bailor, the crime may be in gen
eral terms defined to be the fraudulent conmust be read in connection with the defini
version of another's personal property by tion of property found in subdivision 12 of section 7 of this code.—People v. Hart, 28
one to whom it has been intrusted. When a
bailee of property obtains possession of it Cal. App. 335, 152 Pac. 947.
from the owner with the intention of steal2. Where defendant embezzles the
ing it, and carries out that intent, he is money of two persons at the same time, it
guilty of larceny; but where the intent to constitutes but one offense, and the offense can not be split into two charges and the
steal did not exist at the time of taking defendant be convicted of both.-People v.
possession of the property by the bailee, but Preciado, 31 Cal. App. 519, 160 Pac. 1090.
was conceived afterward, it is embezzlement.
In the case of grand larceny, the taking 3. Elements of offense.-The essential
must be with a felonious intent, as heretogist of embezzlement is in the breach of
fore stated, but in embezzlement, the origitrust reposed and therefore the charge al
nal taking is lawful, and the crime conways presupposes the lawful acquisition of
sists in the fraudulent appropriation of the property. The difference between em
property by a person to whom it has been bezzlement and grand larceny is that in the
intrusted."-People v. Dye, 29 Cal. App. 169, former the original taking was lawful while
154 Pac. 875. in the latter the original taking involves a
6. In a prosecution for the crime of emtrespass, or is accompanied by a felonious
bezzlement, wherein the principal defense intent to deprive the owner of the property was that the defendant at the time of the so taken.—People v. Knox, 32 Cal. App. 158,
taking of the money was not responsible, 162 Pac, 407.
because he was incapable of understanding Defenses.-In a prosecution of a tax the nature and quality of the act on account collector for the alleged embezzlement of of his then insanity, it is reversible error certain moneys paid to him as such officer for the court to instruct the jury in three by certain parties, wherein he interposed or four different instructions that the dethe plea of once in jeopardy based upon his fense of insanity must be "clearly proved," acquittal of the alleged embezzlement of "clearly established" and "satisfactorily esother moneys paid by other parties, it is tablished," notwithstanding the jury was error to refuse to permit him, in support of also correctly instructed that the defense his plea, to show that both sums of money might be established by a preponderance of were taken at the same time.-People v. the evidence.--People v. Preciado, 31 Cal. Preciado, 31 Cal. App. 519, 160 Pac. 1090.
App. 519, 160 Pac. 1090.
FRAUDULENT REMOVAL OF LEASED PROPERTY EMBEZZLEMENT. 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.
History: Enactment approved May 5, 1917, Stats, and Amdts. 1917, p. 273. in effect July 27, 1917.
1. Embezzlement by executor.-An executor may commit such an offense, prior to the date of the order directing its payment to the legatee, as the title to such legacy takes its inception at the date of the death of the testator, and not at the date of the decree.---People v. Dates, 29 Cal. App. 260, 155 Pac. 112.
2. In such a prosecution there is no error in admitting in evidence the decree of partial distribution which directs the payment of the legacy, since such decree is not the source of the legatee's title, but serves only as the basis for the demand, refusal of which amounts to an act of conversion.—People v. Dates, 29 Cal. App. 260, 155 Pac. 112.
3. In the prosecution of an executor for the embezzlement of a legacy upon his failure and refusal to comply with an order of the probate court directing its payment to the legatee, it can not be contended that the venue of the offense was not proved as laid in the indictment, because of the fact that the defendant was in another county between the date of such order and the date of the order issued for the attachment of his person, and from the latter date to the date of his indictment was confined in jail in the county in which the venue was laid. --People v. Dates, 29 Cal. App. 260, 155 Pac. 112.
8 506a. COLLECTOR DEFINED. Any person who, acting as collector, or acting in any capacity in or about a business conducted for the collection of accounts or debts owing by another person, and who violates the provisions of section five hundred six of the Penal Code, shall be deemed to be an agent or person as defined in said section five hundred six of the Penal Code, and subject for a violation of the provisions of said section five hundred six of the Penal Code, to be prosecuted, tried, and punished in accordance therewith and with law; and the word collector herein set forth shall also include and be held to mean every such person who collects, or who has in his possession or under his control property or money for the use of any other person, whether in his own name and mixed with his own property or money, or otherwise, or whether he has any interest, direct or indirect, in or to such property or money, or any portion thereof, and who fraudulently appropriates to his own use, or the use of any person other than the true owner, or person entitled thereto, or secretes such property or money, or any portion thereof, or interest therein not his own, with a fraudulent intent to appropriate it to any use or purpose not in the due and lawful execution of his trust.
History: Enactment approved May 24, 1917, Stats. and Amdts. 1917, p. 931.
in effect July 27, 1917. 8 507.
$ 523. 1. Embezzlement by bailee, etc.-Inform
1. Threatening letters -Indictment. ation, sufficiency of.-An information charg- Where as a matter of fact the original leting a defendant with the embezzlement of ter was written in Italian but the informatwo Wells Fargo checks issued to the prose- tion set it out in English, the proper alcuting witness and payable to his order legation is to set out that the letter is in a when countersigned by him, which alleges foreign language, a correct translation of that they were intrusted to the defendant which is as follows, and set it out accordfor safekeeping, and that while in his pos- ing to its English meaning.-People v. Rizsession he sought to dispose of them by otto, 30 Cal. App. 616, 159 Pac. 199. having some other person countersign the
Varlance.-In a prosecution under this name of the prosecuting witness thereon, section, where the letter was set out in haec sufficiently alleges a public offense.—People verba in the English language, whereas as v. Hart, 28 Cal. App. 335, 152 Pac. 947.
a matter of fact it was written in Italian, 2. A conviction of an attempt to commit and there is no averment acquainting the a felony embezzlement is warranted in such defendant with the facts there is a fatal a prosecution upon such an information.- variance between the allegations of the inPeople v. Hart, 28 Cal. App. 335, 152 Pac. formation and the proof. In such a case 947.
the original is not admissible in evidence
as proof.-People v. Rizotto, 30 Cal. App. $ 510.
616, 159 Pac. 199. 1. Embezzlement of undelivered evidence of debt-Construction.—This section is not
$ 529. intended to be exclusive in its definition of 1. False personation-Information (subd. what evidences of debt might be the sub- 3).-An information under this subdivision ject of embezzlement. Wells Fargo checks must allege affirmatively the things required issued to a named person and payable when by it, or else it should appear from the act countersigned are the subject of larceny.- of impersonation that the injury or benefit People v. Hart, 28 Cal. App. 335, 152 Pac. 947. referred to in the section would have been
1. False pretense-Indictment or information.—The indictment must show that the property was obtained by means of the false pretense alleged. Accordingly, when there appears to be no natural connection between the pretense and the delivery of the property, such additional facts as are necessary to show the relation must be alleged.People v. Canfield, 28 Cal. App. 792, 154 Pac. 33.
2. An indictment for obtaining money by false pretenses which alleges that the defendant, with intent to defraud certain parties out of their money, falsely and untruthfully represented that he was the owner and holder of a certain promissory note secured by a mortgage, and that by reason of such false and fraudulent representations and pretenses, such parties relying upon such representations and pretensions and believing the same, were thereby induced to and did pay over to the defendant a specified sum of money of the moneys belonging to them, is insufficient, since it fails to disclose any natural or causal connection between the alleged false representations and the delivery of the money.People v. Canfield, 28 Cal. App. 792, 154 Pac. 33.
3. An indictment or information charging
the crime of obtaining money or property by false representations and pretenses must show the facts as to what the pretenses were; that there was an intent to defraud, the name of the person defrauded, with a description of the property and a statement of its value, together with an allegation that the false and fraudulent pretenses charged were relied upon by the party who claims to have been defrauded, and that he was induced thereby to part with his property.-People v. Haas, 28 Cal. App. 182, 151 Pac. 672.
4. Where an information charging the obtaining of money by false pretenses contains all of such averments, it is not essential to expressly allege that the purpose for which the money was delivered was that contemplated by the offender, at least when the statement of the pretenses in themselves shows precisely what the purpose was.People v. Haas, 28 Cal. App. 182, 151 Pac. 672.
5. —Verdict us to value.-In a prosecution under this section it is sufficient for the jury to find that the defendant was guilty as charged in the information, and a statement in the verdict concerning the value of the property is an immaterial addition.-People v. Keach, 28 Cal. App. 194, 151 Pac. 747.
FALSE PERSONATION AND CHEATS.
$ 537d. Removing automobile subject to lien a misdemeanor [new]. $ 536.
firmative element of the offense, the law
interprets that the act knowingly done was FALSE STATEMENTS BY BROKER, ETC.
of a criminal intent and it need not be al1. Construction of section.
leged or proven, and an instruction to that 2, 3. Indictment.
effect is in accordance with the law.-People 4, 5. Evidence.
v. Phillips, 30 Cal. App. 31, 157 Pac. 1003. 1. Construction of section.--This section
Evidence.-In a prosecution for selling prescribes that one selling mortgaged prop- mortgaged personal property without inerty without the prescribed notice is guilty forming the mortgagee of the sale or the of larceny and "is punished accordingly." intended purchaser of the mortgage it is The crime therefore is either grand or petit prejudicial error to admit evidence showing larceny, dependent upon the kind or value the sale by the defendant of property inof the property taken.-People v. Phillips, cluded in other mortgages than that set 30 Cal. App. 31, 157 Pac. 1003.
forth in the information, for the purpose of Indictment.-In a prosecution for sell. proving the intent with which the act coming mortgaged personal property without plained of was committed.--People v. Philinforming the mortgagee of the sale or the lips, 27 Cal. App. 409, 150 Pac. 75. intended purchaser of the mortgage, the in- 5. In a prosecution for selling mortgaged tent with which the act was done, not being cattle without informing the mortgagee of an element of the offense, need not be al- the sale and the purchaser of the mortgage, leged or proved, as the law imputes the act the mere fact that the mortgaged cattle knowingly done was with a criminal intent. could not be found on the defendant's ---People v. Phillips, 27 Cal. App. 409, 150 ranch was not of itself evidence of a sale to Pac. 75.
any one.-People v. Phillips. 27 Cal. App. 3. Where the intent is not made an af- 409, 150 Pac. 75.
$ 537d. REMOVING AUTOMOBILE SUBJECT TO LIEN A MISDEMEANOR. Any person who surreptitiously or by false pretenses obtains or removes from any garage or repair shop any automobile or other personal property upon which the proprietor or manager thereof would be entitled to a lien, pursuant to the provisions of section three thousand fifty-one of the Civil Code, is guilty of a misdemeanor.
History: Enactment approved May 7, 1917, Stats, and Amdts. 1917,
p. 291. in effect July 27, 1917. $ 548.
belonged, or who was the beneficiary of the
insurance; the question of ownership BURNING, ETC., PROPERTY TO DEFRAUD
would arise only as a matter of evidence INSURER.
for the purpose of showing that the person 1. Construction of section-Head-note.
in whose favor the policy had been issued 2. Elements of the offense.
had an insurable interest in the property.-3, 4. Indictment or information-Allegations
People v. Barbera, 29 Cal. App. 604, 157 Pac. in.
532. 5, 6. Instructions.
4. The information is not void for uncer1. Construction of section-Head-note.
tainty because of the failure to state facts The head-note "Burning or destroying prop
constituting the intended fraud upon the erty insured" is not a mere editor's note, but
insurance company, or the particular ciran integral part of the section.—Matter of cumstances connecting the defendant with Application of Wilson, 30 Cal. App. 567, 158
that element of the offense.-People Pac. 1050.
Truax, 30 Cal. App. 571, 158 Pac. 510. 2. Elements of the offense.—The essen
5. Instructions.-In such a prosecution an tial facts are that the property was insured
instruction defining malice as a necessary against such loss and that the defendant
ingredient of arson is erroneous, since the burned or otherwise injured or destroyed
crime charged is not arson, but is not such the property with intent to defraud or preju
prejudicial error as will alone justify a redice the insurer. A statement of the fact versal of the judgment.--People v. Barbera, that the property burned was property of
29 Cal. App. 604, 157 Pac. 532.
6. any particular person is not essential to a
In such a prosecution it is not error complete description of the offense, for the
to admit in evidence certain photographs defendant might be guilty even if the prop
taken a few hours after the fire, showing erty belonged to himself. The question of the appearance of the building at the time ownership arises only as a matter of evi- the photographs were taken.--People dence for the purpose of showing that the
Barbera, 29 Cal. App. 604, 157 Pac. 532. person in whose favor the policy had been issued had an insurable interest in the prop
3 549. erty described in the policy.—People v. Bar- 1. Presenting false proofs of loss-Conbera, 29 Cal. App. 604, 157 Pac. 532.
struction of section Head-note.The head3. Indictment information - Allega- note "Presenting false proofs in support of tions in.--In a prosecution for the crime de- a claim upon policy of insurance" is not a fined in section 548 of the Penal Code, pro- mere editor's note, but an integral part of viding "that every person who willfully the section.—Matter of Application of Wilburns or in any other manner injures or son, 30 Cal. App. 567, 158 Pac. 1050. destroys any property which is at the time
-Accident Insurance not included.—. insured against loss or damage by fire, or This section does not include the presentaby any other casualty, with intent to de- tion of a false or fraudulent claim or proofs fraud or prejudice the insurer, whether the in support of such claim upon a contract of same be the property of or in possession of accident insurance; an information chargsuch person, or of any other, is punishable ing such states no criminal offense under by imprisonment in the state prison not less this section, and one convicted thereunder than one nor more than ten years," it is may be discharged on habeas corpus.--Matnot necessary to state in the indictment the ter of Application of Wilson, 30 Cal. App. name of the person to whom the property 567, 158 Pac. 1050.