People v. Clay

• Decision Date: 07 May 1964
• Docket Number: Cr. 4374
• Citation: 38 Cal.Rptr. 431,227 Cal.App.2d 87,100 A.L.R.2d 1421
• Court: California Court of Appeals Court of Appeals
• Parties: , 100 A.L.R.2d 1421 PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest L. CLAY, Defendant and Appellant.

Page 431

38 Cal.Rptr. 431

227 Cal.App.2d 87, 100 A.L.R.2d 1421

PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest L. CLAY, Defendant and Appellant.

Cr. 4374.

District Court of Appeal, First District, Division 1, California.

May 7, 1964.

Hearing Denied July 1, 1964.

Bernheim, Sugarman & Gilbert, Richmond, for appellant.

Stanley Mosk, Atty. Gen. of State of California, Albert W. Harris, Jr., Charles W. Rumph, Deputy Attys. Gen., San Francisco, for respondent.

SULLIVAN, Justice.

Defendants Ernest L. Clay and Arthur Junior Davis were charged in the first count of an information with burglary (Pen.Code § 459) and in a second count with grand theft (Pen.Code §§ 484-487). A jury found defendants guilty on both counts, finding the degree of burglary under the first count as second degree. (Pen.Code §§ 460, 1157.) Defendant Clay was sentenced to prison on the first count for the term prescribed by law. The sole appellant herein, he appeals from the judgment of conviction and the sentence entered thereon.

On November 19, 1962, at about 11:00 a m. defendant and Davis entered Butler's Market in Cloverdale. Although defendant testified that he walked into the store by himself and that to his knowledge Davis was never in the store, Charles Thurow, one of the owners, testified that while he was taking an order on the telephone he saw both men who were Negroes come in the door together. Thurow stated that to his knowledge there were no other colored persons in his store on the day in question and that the store had no regular Negro customers. Later, as he looked down an aisle from his position at the telephone, Thurow saw Davis standing near the frozen food compartment.

At about this time, Earl Giacolini, the other owner of the store who was stocking shelves, saw defendant at the check-out stand and went up to the front of the store to wait on him. Defendant had a ten-cent bag of potato chips for his purchase and handed Giacolini a one-dollar bill. The latter rang up the sale on the cash register located to his right behind the counter, placed the bill in the till and returned the change to the customer. Defendant then requested a package of snuff which was located in a rack behind Giacolini, about three or four feet from the cash register, and about twelve to fifteen inches from the floor. Giacolini reached for the snuff, causing him to turn partially and to lose vision of both the register and the defendant. As Giacolini brought up a red can of snuff the defendant told him, 'No, I prefer the other,' so he (Giacolini) reached for the other, after which the defendant asked for some cigarette papers located next to the snuff. Giacolini took twenty cents in payment for the two items and returned the balance of the change to defendant. During this transaction, which occurred in a 'matter of seconds,' the defendant was standing approximately three to four feet distant from the cash register, and Giacolini did not notice any change in his position.

Giacolini then saw defendant leave the store. During all the time he was waiting on the latter, he saw no other persons around the check stand. Nor did he see defendant's companion Davis in the store at any time.

During the course of the above events, one Milton Holt, a Cloverdale merchant, entered Butler's Market by the rear entrance. He fixed the time as approximately 11:15 a. m. As he was walking through the store, Holt saw defendant and Davis at the check stand. Davis was facing away from Holt and defendant was sideways to him, looking into the check stand area. Holt kept walking in that direction but temporarily lost sight of Davis. When he reached a point about five or six feet from Giacolini, Holt saw Davis' 'hand, his arm through the opening, his hand balled in a fist coming out of the till.' Giacolini was also facing away from the witness and defendant 'was sort of half leaning over the counter pointing at something.' Holt then saw Davis walk to the rear of the store with his right hand held out but 'still balled up in a fist.' He could not see whether there was anything in the hand. Davis went out the rear exit.

Holt immediately told Thurow what he had seen and the two men ran out the rear door after Davis and down the adjoining alleyway to an intersecting street where they saw defendant and Davis just rounding the corner. Thurow ran up to Davis who was 'hurriedly walking' to his car. He asked Davis what he had taken out of the store and the latter replied that he had not been in the store. Defendant, who had proceeded down the street, came back and asked Thurow what was wrong. Thurow told him that Davis had taken something from the store. To this, Clay replied: 'He couldn't have because he wasn't in your store.' Defendant and Davis then entered their car and Thurow returned to the market. Giacolini and Thurow found that $380 was missing from the cash register.

Thurow reported the incident to the Cloverdale Chief of Police and went with the latter in a police car along the highway in pursuit of the two men. Eventually they overtook them a short distance south of Cloverdale. Thurow stated that some money was missing from his store and Davis replied that he had never been in the store. Defendant and Davis voluntarily returned with the chief in the police car leaving their own car, a Cadillac, on the side of the road. Both men were searched at the police station. No money at all was found on Davis; defendant had only a dollar and some change. Searches of the Cadillac uncovered no money.

Interrogation of both men by the chief of police at the station resulted in the following information: Neither had a driver's license; Davis had a social security card; defendant identified himself as Ernest Lee Clay; he denied that he and Davis were acquainted, stating that he had been hitchhiking from Eureka and that Davis had offered to give him a ride to Richmond, if he would share the gasoline expense.

An officer of the California Highway Patrol testified that on November 8, 1962 (11 days before the events here involved) he had issued a citation to one Copelin Clay whom he identified as defendant; that on that date defendant was driving the Cadillac accompanied by Davis; that a check of the auto registration showed a dealer's temporary report of sale to both Copelin Clay and Arthur Davis; and that both men then stated that they had bought the car.

Over defendant's objection, Inspector Robert Reed of the Oakland Police Department testified as an expert on the crime of 'till tapping' and, as we discuss in more detail infra, expressed an opinion that a hypothetical set of facts similar to those in the instant case revealed the 'usual procedure of till tappers.'

Both defendant and Davis took the stand on their own behalf. Both denied taking the money. Defendant asserted that he entered the store alone and never saw Davis there at any time. Davis insisted that he had never been in the store. According to defendant, they were returning from Eureka, ¹ Davis had parked the Cadillac on the side street and defendant had entered the store alone to buy something to eat. He explained that he told the police he did not know Davis because 'at first I was unaware what was happening and I didn't want to be involved in nothing, so that's why I told him that.' The stolen money was never found.

Defendant contends that the court committed error in admitting in evidence over defendant's objection the expert testimony of Inspector Reed 'as to the crime of 'till-tapping' in general' and the opinion testimony of the inspector 'as to the guilt' of defendant. The witness was qualified as an expert in the investigation of 'till tapping' because of his 26 years service in the Oakland Police Department, including 8 years on the burglary and grand theft detail. ² Immediately after the voir dire examination the prosecutor directed to the witness a hypothetical question predicated on an assumed set of facts similar to those appearing from the prosecution's evidence ³ and concluding thusly: 'Now, assuming the facts that I have given to you, Inspector, would you as a--from your experience in the field have any opinion as to what, if any, crime had been committed from those facts?' The witness replied: 'That is the usual procedure.' Defendant thereupon made certain objections to the questions which appear in the reporter's transcript after the above answer but were nevertheless entertained by the court. The witness was thereupon asked to assume as suggested by the court an additional fact as part of the hypothesis that the two men in question 'were seen entering into a fourwalled building known as a grocery store.' The following then took place: 'THE COURT: The objections then are overruled, and the question concerning your opinion as to that set of facts and what, if any, crime it involved may be answered. THE WITNESS: That is the usual procedure of till tappers.'

Thereafter in response to a number of prosecution questions, the witness explained his definition of till tapping and what, from his experience, was the 'consistent procedure' of till tapping. Among other things, he stated that he could recall of no particular case in his experience where the money was actually seen being taken although there were instances where the store clerk would immediately notice that the money was gone and, an alarm having been sounded, the persons involved would be apprehended on the street together. At this point the following testimony was given: 'Q. Now, the till tapping then is a crime, that is committed in the stores during the daylight hours, is that correct? A. Any time the store is open.'

All of Inspector Reed's testimony was admitted over objection. At its conclusion defendant moved to strike the testmony on the grounds of the previously raised objection. The motion was denied. The People then rested.

Although defendant objected in the court below that Inspector Reed did not...