People v. Boyden

Citation116 Cal.App.2d 278,253 P.2d 773
Decision Date26 February 1953
Docket NumberCr. 4889
CourtCalifornia Court of Appeals
PartiesPEOPLE v. BOYDEN.

Gerald Glen Boyden, in pro per.

Edmund G. Brown, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County, appellant and one Louis William Parks were charged in Count I with the crime of burglary, and in Count II with the offense of receiving stolen property. Each was charged with having previously been convicted of a felony and with having served a term of imprisonment therefor.

Appellant pleaded not guilty as charged in the information, and admitted the prior conviction. He refused the court's offer to appoint counsel to represent him, and notwithstanding the repeated urging of the trial judge that he accept counsel, he steadfastly insisted that he would represent himself.

Trial by jury was duly waived and following trial before the court, appellant was found not guilty of burglary as charged in Count I and guilty of the offense of receiving stolen property as alleged in Count II. His co-defendant Parks was acquitted on both counts. Judgment was accordingly pronounced and from the judgment of conviction this appeal is prosecuted.

Epitomizing the factual background surrounding this prosecution, the record reflects that at 5 p. m. on February 26, 1952, the senior cashier of the Department of Employment of the State of California, at the Huntington Park office in Los Angeles County, locked up the two safes which were inside a metal cash cage, focused a light on each, turned it on, and locked the door of the cage. Inside the cage were two adding machines. Between 5:00 and 5:30 p. m. that night, the windows and doors of the office were checked to see that they were locked. The janitor who was the last person to leave the office, noticed that the cage was locked and the lights focused on them when he left at 7:15.

On the morning of February 27, 1952, the employment security officer for the Employment Department entered the office between 7:00 and 7:10 a. m. He saw that the back door was open and a fire extinguisher was holding it. The screen door was unlocked and there were several indentations on it. The door of the cage had been forced open, the lock was broken, the lights which had been focused on the cages were off, and one of the safes had been moved several inches off its base.

The acting manager checked the equipment which was left in the office against an inventory list which had been made up the previous July, and determined that two adding machines and eight typewriters were missing. The types and numbers of the missing typewriters were of record. Neither the senior cashier nor the acting manager had given anyone permission to enter the office or take anything therefrom.

On February 29, 1952, at about 1:45 p. m., appellant entered the Parker Typewriter Company in Pasadena. He asked if they bought used typewriters, and Mr. Parker asked him what kind of a machine he had. The appellant said it was an Underwood, and was about six months old. He said that he had it in his car, and Mr. Parker told him to bring it in. The appellant brought in a typewriter, an Underwood, No. 6571790. (This was one of the stolen typewriters.) Mr. Parker offered the appellant $65 for the machine, which he accepted. While Mr. Parker was writing up the bill of sale, he asked the appellant if he had a bill of sale. The appellant said that he had not, as the machine had been given to his wife as a Christmas present. He later said it was a birthday present. Mr. Parker telephoned the Pasadena Police Department to check the serial number, and at that time the police said they had no record of it, but that they would telephone to Los Angeles and call Mr. Parker back. Ten minutes later the police called and said that the typewriter had been stolen, and that two officers were on teir way over. The appellant was still in the store when the police arrived, and Mr. Parker turned the typewriter over to them.

The appellant told Officer Bornhoft, one of the arresting officers, that he was from Watts; that a friend named Robertson had taken him to Pasadena in the appellant's old Ford; that Robertson had gone to visit a girl friend and would return for him in about thirty minutes. The appellant said that his wife had given him the typewriter the day before. The officers took the appellant to the police car, drove around the block, and parked on the Arroyo Parkway just south of Colorado Street. Their attention was attracted to a 1939 Oldsmobile which was parked nearby. It was registered to W. L. Boyden, and in the trunk compartment there was an adding machine (which was identified as having previously been in the Department of Employment Office), and a Smith-Corona typewriter No. 1A2123484 (also identified as one of the stolen typewriters).

Later at the Pasadena Police Detective Bureau, Officer Bornhoft asked appellant where he obtained the Underwood typewriter, to which question appellant repeated that his wife had given it to him the day before; that he was to sell it for her and give her the proceeds of such sale. The officer said, 'You are not telling the truth'. Appellant moved his head, indicating that he was not. The officer said, 'You did not get this typewriter from your wife. You are telling a lie', to which appellant replied, 'Yes. I have been in this sort of thing before, and the truth has never helped me.' The officer then inquired of the appellant as to who owned the Oldsmobile and received the reply that it belonged to appellant's brother, but that the former did not know that the vehicle was in Pasadena since he had not brought it there.

The arresting officer found a key on the appellant's person, and 'No. 43' appeared on the tag thereof. The appellant said that it was for a room in the Reed Hotel some place on 103rd Street but that he did not live there, as he kept it to entertain girl friends; that his own room was No. 5.

On the evening of the same day, an investigator from the Department of Employment had a conversation with the appellant in the interrogation room of the Pasadena Police Department. The investigator, Mr. Cooper, asked appellant if he would give him a written statement, and the appellant refused. Mr. Cooper said, 'This story that you told Officers Bornhoft and Rhue this afternoon was not true, was it, Gerry?' The appellant replied, 'No, it wasn't. I never not any place telling the truth.' Mr. Cooper said, 'Well, this story that you got this typewriter from your wife is not true, is it?' The appellant replied, 'No.' Mr. Cooper asked where he got the typewriters and the adding machine, and the appellant said he got them at about 12:00 o'clock that day outside of the Samba Cafe on East Fifth Street, from a Joe Taylor. He said that Joe Taylor was a man he had 'done time' with in the County Jail at Los Angeles in 1947. He said that Taylor had backed up his Plymouth and transferred the machines into the trunk of the Oldsmobile. When Mr. Cooper asked the appellant if he knew whether the merchandise was 'hot', appellant said, 'I had an idea it was.' He also said that he had nothing to do with the burglary.

On March 4th at the Huntington Park Police Department, Mr. Cooper showed the appellant seven photographs taken from the Los Angeles Police Department files, and asked him if he knew any of the persons. The appellant picked one photograph out and said that he 'knew him'; that his name was Joe Taylor. He denied that it was the Joe Taylor that gave him the machines, and said that it might have been the Joe Taylor that he 'did time' with in 1947. He said that he did not knew where the other machines were, but that if Mr. Cooper released him he thought that he could recover them with the assistance of Toledo Slim, a character from Fifth Street.

On March 4th, Officer Keator, of the Huntington Park Police Department, received a key, with a tag containing the number '43', from Captain Armstrong of the same department. He went to Room 43 of the Kaye Hotel at 5535 Central Avenue, and entered it. Inside he found a Remington typewriter and certain papers, among which was one having 'State of California, Department of Employment' printed at the top.

On March 5th, Mr. Cooper had another conversation with appellant, about a typewriter which was said to have been removed. Mr. Cooper said, 'Gerry, I suppose you know where we got this typewriter, don't you?' The appellant answered, 'Yes, I think I do.' Mr. Cooper said, 'It was recovered in your room.' The appellant said, 'Yes, I know that.' The appellant denied that Joe Taylor had taken the typewriter to the room, and said that he took it there himself.

In his brief, appellant denies the truth of statements attributed to him by Police officers in their testimony, but he did not take the witness stand at his trial to deny or explain them. Article I, section 13 of the Constitution of California provides that in a criminal case, the failure of an accused to explain or deny by his testimony any evidence or facts in the case against him may be considered by the court or jury.

As his first ground of appeal, it is urged by the appellant that the court erred in allowing the investigating police officer witnesses were excluded at appellant's request. In refusing to exclude the investigating officer the court did not err. The gating officer the court did not err. The exclusion of witnesses on the part of the prosecution, on motion of the accused, is not a matter of absolute right in all cases, but rests very much in the discretion of the court, which discretion may be exercised in favor of the defendant's application or not, according to the circumstances of the case.

In the instant proceeding, the district attorney stated that he needed the services of the officer, and that there was no way in which he...

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