People v. Brown, Cr. 4802

• Decision Date: 06 November 1952
• Docket Number: Cr. 4802
• Citation: 114 Cal.App.2d 52,249 P.2d 595
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. BROWN.

Page 595

249 P.2d 595

114 Cal.App.2d 52

PEOPLE v. BROWN.

Cr. 4802.

District Court of Appeal, Second District, Division 3, California.

Nov. 6, 1952.

William W. Larsen, Los Angeles, for appellant.

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

PARKER WOOD, Justice.

Defendant was charged with grand theft of $1,800 from Arthur A. Matthews. In a trial by jury he was found guilty. Proceedings were suspended and probation was granted. He appeals from the order granting probation. See Pen.Code, sec. 1237, subd. 1.

Appellant contends that the verdict is against the evidence and the law; that the court erred in giving and failing to give certain instructions; and that it erred in matters of law.

At the time of the alleged offense, February 16, 1950, the appellant, his wife and two children were living with his wife's cousin, Mrs. Wilk, in her home at Puente. They had lived there approximately two months. Appellant's wife testified that they had no money with which to pay Mrs. Wilk for board or lodging. During that time, according to appellant's testimony, his Plymouth automobile was demolished in an accident.

Mr. and Mrs. Matthews and their son Don, who was 21 years of age, resided in Riverside. They had known appellant and his wife about six years. On February 15, 1950, appellant and his wife went to the Matthews home, and appellant told Mr. Matthews, in the presence of Don, 'about' a deal he had for the purchase of wild cattle in Arizona, and he said he needed $1,800.

Mr. Matthews testified that appellant told him the cattle were along the Colorado River south of Topock; appellant drew a map (People's Exhibit 1) and pointed to a place thereon which he said was a ranch; he said the cattle belonged to that rancher, an old man who wanted to get the cattle out of there; he drew a road on the map and said it was a road to the ranch and the cattle--that to go where the cattle were, a person would go 2 1/2 miles east from Topock, then turn south onto a sandy road and go 24 miles to the ranch, which was at the end of the road; appellant said that he had been there, had seen the cattle and estimated there were about 100 cattle; appellant said that he was to pay the rancher 5 cents a pound for the cattle he took out and that the rancher demanded a deposit of $3,000; the appellant said he had $1,200, and he asked Mr. Matthews for $1,800; appellant said that he was to meet the rancher in Los Angeles the next day and he had to put the money up or the rancher would give the deal to someone else; he (Matthews) said that he would think it over and would see appellant the next day.

The next day, February 16th, Mr. Matthews and Don went to the home of Mrs. Wilk and had a further discussion with appellant regarding the cattle. Then appellant, Mr. Matthews and Don went to the office of a notary public. Mr. Matthews testified that the appellant told the notary that they wanted an agreement and the notary typed what appellant said he wanted in the agreement. The said writing (Exhibit 2) was signed by Mr. Matthews and appellant. It was as follows:

'El Monte, California

February 16th 1950

'Arthur A. Matthews

9657 Hastings Blvd

Riverside, California

'Dear Sir:

'I propose to enter into a project of Buying, Catching, and Selling of Wild Cattle, of any Brands or Marks, within the State of Arizona, and offer you the opportunity of participating in one-half of the profits derived therefrom, with the understanding that you advance me the sum of Eighteen ($1800) hundred Dollars towards the project, it being understood that I have to date put into this deal Twelve Hundred ($1200) Dollars.

'It is understood that this project shall be completed within six months from date hereof, and that all proceeds shall be split 50-50 after the return to you of your $1800, and my $1200, all expenses of this project to be deducted from said settlement.

'Acceptance of the above shall put this agreement into effect.

'John Mark Brown

John Mark Brown

'Above fully accepted by me this 16th day of Feb. 1950.

Arthur A Matthews

Arthur A. Matthews.'

After the agreement was signed, appellant, Mr. Matthews and Don returned to the home of Mrs. Wilk. Mr. Matthews gave appellant $1,800 in cash--in $100, $50 and $20 bills. Appellant told him not to discuss the matter with Mrs. Wilk. Then after Mr. Matthews and Don went home, the appellant, according to the testimony of Mrs. Wilk, came into her house, showed her a large roll of bills and said, 'That's the kind of a friend to have. He is a grand fellow and he gave me five years to pay it back, which is the best part of it.'

The next day, February 17th, appellant purchased a new 1950 Mercury automobile. He made a cash payment of $1,700 on the purchase price. The salesman, who sold the automobile, testified that appellant paid that amount in bills of large denominations--$100, $50 and some $20 bills. Mrs. Wilk's husband testified that the day after appellant purchased the automobile appellant said that a friend let him have some money to buy a new car--that it was a loan to be paid off in five years. About February 21st, appellant went to the Matthews home in the new automobile; thereafter Mr. Matthews did not see appellant until the preliminary hearing (about 16 months later). Mr. Matthews testified that he wrote letters to appellant, addressed to two places in Arizona, which addresses he had obtained from appellant's relatives; he received no reply from appellant, but appellant's wife answered two of the letters.

Mr. Matthews testified further that at the time he gave the $1,800 to appellant he was relying on appellant's statements that the cattle were located 24 miles south of a point 2 1/2 miles from Topock; that there were 100 cattle and appellant had seen them; that appellant had $1,200 to apply on the deposit; and that appellant could get the cattle for 5 cents a pound.

Don Matthews' testimony, as to the conversations between appellant and his father, was substantially the same as that of his father.

The chief of police of Needles, California, testified that he was acquainted with the territory from Topock south to the Parker Dam; for the past 15 years he had been through it on an average of three times a month; there were no cattle in that territory in 1950.

Another witness testified that he had lived in the vicinity south of Topock from October, 1948, to September, 1950; a Mr. Hunter put 29 head of cattle in there in 1949 and took them out in November of that year; he saw no wild cattle in that territory and heard of none.

An investigator for the district attorney testified that he obtained the map (which appellant had made) from Mr. Matthews and took it to Topock; he proceeded east, following the map, to the point 2 1/2 miles from Topock, then turned south and went 7 1/2 miles to the end of the road, in the mountains, where there is an old abandoned mine; he took photographs of the mine, showing the background and the end of the road.

Appellant testified that in the early part of October, 1949, he met J. T. Gowd in Parker, Arizona; then appellant left Parker and proceeded north to the Bill Williams River where he saw 7 or 8 bunches of wild cattle; he returned to Parker and made inquiries as to who owned the cattle; Gowd said he had cattle running in there and had a ranch south of Topock; appellant said he would pay him 5 cents a pound for all of the old cattle and 16 cents a pound for cattle less than 3 years old, and they agreed to meet again in Parker in January, 1950; they met at said time and agreed that the deal should go through as planned provided the appellant put up $3,000 and that they would meet again in Los Angeles on February 18th; while returning home, appellant's automobile was demolished; when he talked with Mr. Matthews on February 15th, they discussed catching wild cattle and he (appellant) told him about different bunches of cattle, and he told him about his deal with Gowd; he did not ask Mr. Matthews for money, but Mr. Matthews said he was interested in a deal like that, or anything to make money at that time; appellant told him where Gowd said the ranch was and drew the directions on the map from information Gowd had given him; appellant had never been there; he told Matthews that if the deal worked out 'to a profit' that they would go farther down the river to other bunches of cattle--the Goulette cattle at Cibola and the Wilson cattle; he told Matthews it would take $3,000, including the cost of grain, groceries and equipment, and that he agreed to give Gowd $2,000 cash as a deposit, and that he (appellant) needed $1,800; on February 16th, they went to the office of the notary public, and he and Matthews told the notary what they wanted; appellant drew the map in the office of the notary after the agreement was signed; after they returned to the Wilk residence, appellant told Matthews not to discuss the matter with Mrs. Wilk; on February 18th, he met Gowd in Los Angeles and Gowd wanted $2,000 in cash paid at that time, but appellant said he would deliver the '$3,0...