Opinion
Hearing Granted by Supreme Court Feb. 15, 1928.
Appeal from Superior Court, San Diego County; S. M. Marsh, Judge.
A. Kirsch was convicted of larceny, and he appeals. Reversed.
COUNSEL
Paul W. Schenck, of Los Angeles, and Clifford K. Fitzgerald, of San Diego, for appellant.
Stephen Connell, Dist. Atty., of San Diego, for the People.
OPINION
YORK, J.
Appeals from judgment of conviction on the verdict of the jury finding the defendant guilty of grand larceny under count 4, and guilty of petit larceny under count 10, of an indictment returned by the grand jury of San Diego county originally containing 12 counts charging the defendant with larceny, false pretenses, and embezzlement, and from an order denying defendant’s motion for a new trial.
To simplify the matter, there were four transactions which were charged in three separate ways and in that way making up the twelve counts of the indictment. The court sustained a demurrer to counts 2, 5, 8, and 11 (the false pretense counts), and overruled the demurrer as to the remaining eight counts. The defendant entered a plea of not guilty to the remaining counts, and was found guilty of grand larceny under count 4 and guilty of petit larceny under count 10.
The very voluminous transcript and the lengthy briefs filed would make the matter appear to be more complicated than it really is. The defendant was the vice president of a company buying certain junk. The evidence clearly shows that by the juggling of weighmaster’s tickets by the defendant in the one instance, and the unloading of part of one load after weighing and the reweighing of the remaining portion, and the passing by the defendant of the ticket for this lighter load as a ticket for the full amount received, the defendant succeeded in fixing it so that his company would pay less than the actual amount of the value of the material received as fixed by the contract in the amounts and to the extent as charged in indictments Nos. 4 and 10, on which indictments he was convicted of larceny. The defendant did not testify at the trial.
Portions of the agreement for the sale of this junk material between the Western Electric Company and the Pacific Telephone & Telegraph Company in the first instance, whereby the right was given to the Western Electric Company to purchase or to sell for and on account of the telephone company all of the junk material accumulated at certain plants within the state, including San Diego, are in the record. The Sugarman Iron & Metals Company entered into a contract with the Western Electric Company agreeing to purchase certain of said junk, evidently the parties considering that the Western Electric Company was the agent of the Pacific Telephone & Telegraph Company, although it makes such contract in its own name. This contract provided for a bond of $60,000, to protect the Western Electric Company and guarantee to the Western Electric Company "the faithful performance of the contract," the Sugarman Company to pay upon receipt of invoice. The Sugarman Company then made the agreement with the defendant’s company, the Amalgamated Metals Corporation, of which the defendant was vice president, by which contract it was provided that the junk material was to be purchased by his company at a price to be ascertained, and said contract provided:
"It is further understood and agreed that prompt cash payment will be made to the party of the first part immediately after receipt of any deliveries made to the party of the second part."
It is contended by appellant that the crime of larceny was not committed under the facts shown, because title to the property had passed to the defendant (or rather, to his company) before the taking and carrying away.
The contracts provided for the segregation of the material in the yards of the telephone company at San Diego. Not only was this segregation made, but an actual physical delivery was made to the defendant either for his company or the Sugarman Iron & Metals Company. The record is somewhat cloudy on this question, as he signed receipts, "The Sugarman Iron & Metals Company, by A. Kirsch," and these receipts ran to the Pacific Telephone & Telegraph Company, while the record discloses the fact that he was claiming to receive the same for the Amalgamated Metals Corporation. The deliveries having been thus made to the defendant under these contracts, we will have to hold that title had passed to the defendant’s company as soon as a segregation of the goods sold was made and the property thereby definitely identified. See Blackwood v. Cutting Packing Co., 76 Cal. 212, 18 P. 248, 9 Am. St. Rep. 199. We quote from pages 217, 218 (18 P. 251) of that decision:
"So far as concerns the proposition that where weighing or measuring is necessary to the identification of the goods, the title does not pass until they have been weighed or measured, the American cases are generally in accord with the above rule (citing cases).
"In California the cases are to the same effect. See Horr v. Barker, 8 Cal. 608; McLaughlin v. Piatti, 27 Cal. 463; Caruthers v. McGarvey, 41 Cal. 15. Some of the American cases are not in accord with the rule laid down by Mr. Benjamin in this: That if the goods are identified, it does not matter that weighing or measuring is necessary to ascertain the price or the quantity. And this seems to be the law in California. For the Civil Code contains the following: ‘Sec. 1140. The title to personal property, sold or exchanged, passes to the buyer whenever the parties agree upon a present transfer, and the thing itself is identified, whether it is separated from other things or not. ’
"This section does not dispense with identification. On the contrary, it requires it. It only dispenses with segregation when the property is otherwise identified. Therefore where the identification consists in the segregation, weighing, or measuring, they are still necessary."
All of the acts of the defendant charged in the two counts of the indictment on which he was convicted were done by him after such physical delivery of the goods to him. In view of our decision on the one point herein discussed, it is not necessary to discuss the other points raised.
The judgments and the order denying a new trial are reversed.
We concur: CONREY, P. J.; HOUSER, J.