People v. Lathrom
| Decision Date | 17 May 1961 |
| Docket Number | Cr. 7240 |
| Parties | , 88 A.L.R.2d 785 PEOPLE of the State of California, Plaintiff and Respondent, v. Elmer Callaway LATHROM, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Ramsey & Emlein, Long Beach, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Philip C. Griffin, Deputy Atty. Gen., for respondent.
This is an appeal from a judgment of conviction of arson.
In an information filed in Los Angeles County the defendant was charged with a violation of Section 447a Penal Code in that he allegedly, on or about October 4, 1959, unlawfully and maliciously set fire to certain buildings at 4124 East Slauson Avenue in Maywood. Defendant was charged with a prior conviction of larceny of automobile (1924 in Kansas) and of receiving stolen property (1958 in California). Such latter charges were stricken by order of the court. In a jury trial the defendant was found guilty as charged. An application for probation and a motion for a new trial were denied. Defendant was sentenced to the state prison.
Defendant has appealed 'from the judgment of guilty rendered and entered * * * against defendant, the sentencing of defendant, the denial of defendant's motion for a new trial and defendant's motion for an advised verdict of acquittal.'
The sentence is non-appealable (People v. Gallardo, 41 Cal.2d 57, 60, 257 P.2d 29), as is the order denying an advised verdict. (See Section 1237 Penal Code.)
Some of the facts of the case are as follows:
A place of business known as 'Fowler's Steak House' was located on the date in question on East Slauson Avenue, Maywood, California. The appellant was tending bar at the place on the night of October 4, 1959 with Juanita Gann, a cocktail waitress, and Bruce Kissell, the chef. The wife of appellant and a Davis Gross, who was a friend of the waitress were also present. At appellant's suggestion they all planned to eat dinner at 11:00 p. m. at Walt's restaurant which was about a ten-minute drive from the steak house. Sometime between 10:15 and 10:30 p. m. the group started to leave the steak house for Walt's place. Appellant opened the door for their exit and remained in the doorway while Miss Gann, Gross and Kissell drove away in an automobile. Appellant and his wife owned a red station wagon which was parked in the rear. Appellant was the last person to leave the establishment. At the time he left the place of business the dumb-waiter was jammed between the first and second floors.
After Miss Gann and her party arrived at Walt's they sat down at a table and thereafter appellant and his wife arrived. Appellant remarked upon his arrival that they had made it by 11:00 o'clock. They all stayed at Walt's until about midnight and appellant then went to the Majestic on Pacific Boulevard in Huntington Park.
On the night of the fire (October 4, 1959), Donald R. Young was visiting with his estranged wife, joyce, who resided with her sister, Mrs. Bracken and her four children, in an apartment adjacent to the banquet rooms at the rear of the second story of the steak house building. Young left the apartment about 10:15 to get some soft drinks. As he left the apartment he saw the appellant's station wagon parked in the rear and as he came around toward the front of the establishment he saw a man wearing glasses and with a white shirt who resembled the appellant entering the steak house through the front door. When Young returned from making the purchase of the drinks the station wagon was still parked in the rear. There were no lights in the steak house during this time. At about 11:25 p. m. Young noticed a great deal of smoke coming from the ceiling. His wife called the fire department. When he and his wife left the building because of the smoke the red station wagon was gone. The firemen arrived about 11:30 p. m. and were unable to see any blaze until they ventilated the roof. Captain Rowell supervised the fire fighting. The dumb-waiter shaft ran from the first floor to the upstairs banquet room and was located in the common wall between the banquet room and the apartment on the second floor of the building.
A fireman noted that the fire was centralized in the dumb-waiter shaft. The heat was intense on the second floor but not so great on the first floor. The fire burned a hole in the roof in the area over the shaft and it was then determined that the shaft was on fire from the bottom to the top, the fire being greater at the top than at the bottom.
Water was applied directly onto and into the shaft and ultimately the fire was extinguished. Fire Chief Coon arrived about 11:39 p. m. Ralph Brown owned a liquor store next door to the steak house. About 12:10 a. m. October 5, 1959, appellant entered the liquor store and said, Appellant did not seem to be upset or overly concerned about the fire.
About 2:30 a. m. appellant approached the fire chief and said, 'Chief, you can smooth out this fire with the insurance company for me, and if you will do this I will give you ten cases of whiskey, you name the brand and $500.00 right in your hand.' The Chief replied, 'Okay, Okay' and then reported the conversation to the police department.
The building was secured at 5:30 a. m. and the doors nailed shut. At 7:30 a. m. when the chief returned the doors were still intact and there was no evidence of any entry during the interval.
Later that morning the appellant and his wife and his ex-wife, the bartender, dishwasher and another person removed foodstuffs, liquors and other items from the steak house to the appellant's home. Appellant complained that some of the liquor was missing. However, he was the only one seen to be taking any such items from the burned premises.
In or near the parking lot on the morning after the blaze the appellant talked with Robert Fowler, the former owner of the steak house. Appellant said, 'I didn't burn the place,' and further said to Fowler that he had better go along with him on the fire and that if he did not he would kill him. Appellant also stated that if Fowler brought appellant's brother, Louie, into the matter that he, the appellant, would 'stamp his * * * guts out.' There were other threats of violence by the appellant to Fowler.
It was the opinion of two experts, after examining the premises, that the fire had been set; that the point of origin of the fire was the dumb-waiter shaft; that the conditions indicated that a booster fuel had been used. There was an odor which smelled like paint thinner. The electrical wiring throughout the building was carefully checked and found to be in working order with no shorts and no failures which could have started the fire. In some of the debris at the bottom of the shaft a number of paper menus wadded into a lump were found and gave off a distinct odor. The menus were taken to the crime laboratory and examined. A chemist found the papers to contain hydrocarbon toluene, a highly volatile and inflammable product.
In 1958 Robert Fowler had incorporated the business of Fowler's Steak House. In June of 1959 he negotiated with the appellant for the sale of the stock of the company. The day the contract of sale of stock was executed Fowler first learned that the stock would not be in the appellant's name. On June 4th or 5th Fowler received a cashier's check from the appellant in the sum of $10,000. He received some other checks and cash in the sum of $7,000 for stock, merchandise and accounts receivable from the appellant and in addition thereto Fowler received another $6,500 cashier's check from appellant. There were some other financial transactions which are unnecessary to set forth herein.
Fowler received a note from appellant and later delivered it to Louie Lathrom and received therefor a check.
Fowler carried fire insurance on the steak house building and had a policy to insure for rental income and other insurance. Appellant got the keys to the steak house on about June 5, 1959 and shortly thereafter appellant caused the locks to be changed on the doors. Appellant gave orders to the employees of the establishment and conducted himself as the owner thereof. He signed a listing to sell the place.
Appellant advised Mrs. Bracken, the upstairs tenant of the apartment, to vacate before the weekend of the fire saying in effect that it was a bad place for children to be.
Before the fire appellant inquired of Brown, who owned the liquor store next door, if he had ample insurance and further asked a man who had some saddles on display or exhibit in the steak house if they were properly insured.
On June 17, 1959 Rose Strake and appellant filed a civil action against Fowler for rescission and damages for fraud. The complaint set forth that appellant had negotiated on his own behalf for the purchase of the steak house. Appellant and his wife, Waneta, filed a civil action against the corporation on demand notes executed by Rose Strake as president of the corporation in favor of the appellant. Default judgments were taken in each of the civil cases. It is apparent that it was contemplated that a judgment creditor would be in a better position to execute on a judgment than would a common creditor who had not reduced a claim to judgment. At the time of the fire the steak house was in debt for liquor inventory, for meat, vending machines and other items.
Kenneth Gale, the attorney for defendant in the course of the trial and attorney in this matter, was also the attorney for appellant in the civil actions mentioned.
During the trial the prosecution called as its witness Gale, the attorney for appellant, to testify as to the filing of the civil actions.
Appellant now urges that the evidence was insufficient to sustain the judgment and that appellant was deprived of the right to counsel.
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