People v. Curtis

• Decision Date: 15 March 1965
• Docket Number: Cr. 3619
• Citation: 43 Cal.Rptr. 286,232 Cal.App.2d 859
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Theodore Roosevelt CURTIS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 286

43 Cal.Rptr. 286

232 Cal.App.2d 859

The PEOPLE of the State of California, Plaintiff and Respondent, v. Theodore Roosevelt CURTIS, Defendant and Appellant.

Cr. 3619.

District Court of Appeal, Third District, California.

March 15, 1965.

Hearing Denied May 12, 1965.

George D. Humphreys, Fair Oaks (court appointed), for appellant.

Thomas C. Lynch, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and Daniel J. Kremer, Deputy Atty. Gen., Sacramento, for respondent.

PIERCE, Presiding Justice.

Defendant was convicted of grand theft committed by obtaining money by false pretenses. His contentions on appeal can best be explained from a background of the facts proved.

Defendant met Mrs. Esther M. (we will preserve partial anonymity) in June 1963 at the Senior Citizens' Center in Sacramento. She was a widow 68 years of age. Defendant called himself 'Major Theodore Roosevelt Curtis.' After the meeting, a warm friendship developed. Curtis told her that he was an auditor for two Sacramento stores, Weinstock's and Roos-Atkins; that they had employed him to go to the stores periodically late at night and count their cash. Either then or later he was actually employed as a salesman for a local furniture store.

As their friendship grew, Esther introduced Curtis to the several members of her family. She invited him to her home which she shared with one of her two adult daughters, Nina W., and the latter's children. Later she introduced Curtis to Ada M., 79 years old, also a widow. He, with Esther, was a dinner guest at Ada's home on September 9, 1963. Curtis immediately found Ada simpatico. Learning that she was a that he was a Mason. Curtis told Esther that he was a Mason. Curtis tole Esther that he liked Ada and wanted to see her more often; that she was his kind of a person. A second invitation by Ada for dinner was extended two days later. Somehow Curtis had ascertained that Ada had a savings account. It was in the sum of $10,000 and constituted the life savings of Ada and her deceased husband. During the evening Curtis asked Ada if she would lend him five or six thousand dollars. This was preceded by the following build-up: He told the two women that he had previously been in the furniture business and had had two partners, both of whom had absconded with $60,000. He had had to close the business but still had a stock of furniture in a warehouse and a lease to a building then (and now) occupied by the Tower of Clothing, an established business on Howe Avenue in Sacramento County. Under this lease he had to pay $200 per month rent. His subtenants, the owners of the clothing store, were only paying him $150 per month and therefore he was accumulating a deficit at the rate of $50 per month. This was straining his resources. To recoup his losses he had arranged to reenter the furniture business with two new partners, each of whom was to invest $15,000. His own contribution to the enterprise was to be (1) the lease (he said he had given the owners of the Tower of Clothing a two weeks' notice to quit), (2) the warehoused furniture worth $9,000, and (3) $6,000 in cash. Temporarily without funds, he needed to borrow the $6,000. He told Ada he would pay her 7% interest on the loan.

He also said that the wives of his partners were going to work in the business. He wanted Esther to work there also as a hostess, serving coffee to customers. He confided in Ada that he wanted to marry Esther. Esther, in the next room, overheard this. It was the first time Curtis had mentioned the subject of matrimony. Curtis told Ada that he had a brother in Ogden, Utah, a Mormon bishop, who would perform the ceremony. Esther is a Mormon.

Ada first stated she wanted to think the matter over. The deliberation was brief. She told Curtis that night she would lend him $6,000. Testifying, the explained her motives: first, the promise of payment of 7% on her loaned money which was then in a savings account would bring her greater income; secondly, she was particularly happy that Esther had found a congenial marital partner of her own religion.

The next day the two women and Curtis went to the bank. Ada withdrew $6,000 and handed the money to Curtis. At his insistence it was paid in cash. There was no receipt and no promissory note given. Curtis left stating he would 'put the money in escrow.' The furniture store was to be opened on December 21, 1963.

Two days later Curtis again called on Esther. He drove up in a Cadillac. He stated he had traded in his 1952 Buick and had received an $1,800 trade-in allowance. (The Buick had been bought for $100 with money loaned to him by Esther.)

He had acquired the Cadillac, he said, because it was important in starting up a new business to keep up appearances.

On about September 20th Esther's daughter, Nina W., learned of the $6,000 loan by her Aunt Ada to Curtis. The suspicions of the daughter, her sister and her sister's husband had been aroused previously by what they regarded as Curtis' 'tall tales'--which were indeed tall. Here are some of them, testified to by Nina, and said to have been related at a family dinner party at Esther's home and on other occasions when Nina was present: Curtis said that he had been an aviator in World War I. (To another witness he had related that he had been a 'wing man' in Quentin Roosevelt's squadron and had been shot down.) He had been in the hospital many times. During one experience at the U. S. Naval Hospital (Bethesda?) 'in Virginia' he had had his stomach removed and a goat's stomach substituted with a 'window' left to permit observation by the medical staff during recuperation. He had also apparently been in World War II because a Japanese officer had slashed his arm. For want of adequate field hospital facilities, his almost-severed arm had been taped up and he had been flown in that condition to Letterman Hospital in San Francisco for surgery. This had been so successful that full use of the arm had been restored. He stated that a cousin of his was Vice-President of the United States and that his son had been decorated by General Eisenhower.

Esther's two daughters and her son-in-law commenced an investigation. This included a visit to the Tower of Clothing. Discovery was made there that Curtis never had had a lease with them. Other fruits of their investigation resulted in a visit to a lawyer and, ultimately, to the district attorney. A civil suit was brought and at the time of the trial it was still pending. Fortyfive hundred dollars deposited in a bank account in Curtis' name was under attachment.

After the visit to the district attorney, a detective from the Sacramento police department went with Esther to call upon Curtis. Curtis first denied, then admitted, that he contemplated a business venture. He stated its location was still undetermined. When asked whether he had obtained $6,000 from Ada, he said, 'See my attorney.' Curtis was arrested.

The prosecution's witnesses at the trial included Esther, Ada, Esther's daughter, Nina W., and two Senior Citizens' Center acquaintances of Curtis and Esther. Detective Soski was also a witness. The facts related above are from their testimony. Clarence Coey was another prosecution witness. He is the owner of the premises occupied by the Tower of Clothing. He testified that Curtis had never had a lease to the premises. The owners of the clothing store were his tenants and their lease had three years to run with an option of renewal. Coey did know Curtis, however, as a salesman once employed by a furniture firm which had occupied Coey's building more than a year before the Tower of Clothing had leased the property.

The defendant did not testify on his own behalf. The defense produced one witness, Detective Soski. The principal purpose was impeachment of Ada's testimony as to Curtis' representations with reference to the lease. The detective's report had shown that when he had first interviewed Ada she then said that 'Mr. Curtis stated that his intention was to obtain a lease.' She had also, according to the report, told the officer that Esther had urged her to lend Curtis money.

The discussion to follow will cover defendant's contentions on appeal.

Both the prosecuting attorney and the court (the former in argument and the court in its instructions to the jury) commented upon inferences the jury might be permitted to draw (under appropriate circumstances) from a defendant's failure to take the stand. Defendant argues this violated defendant's privilege, guaranteed by the Fifth Amendment of the United States Constitution, against self-incrimination. The California Constitution guarantees the same right. Article I, section 13, provides: 'No person shall * * * be compelled, in any criminal case, to be a witness against himself.' The same section of the California Constitution goes on to say, '* * * but in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.' Penal Code section 1323 also provides similarly for comment by the prosecuting attorney on the defendant's failure to 'explain or deny' adverse testimony. Defendant contends that the provision just quoted cancels out the guaranty of the first sentence of the section of the California Constitution quoted and of the Fifth Amendment and is therefore void, this because the Fifth Amendment supersedes California constitutional provisions even in state court proceedings.

In Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, the Amendment was held to be binding upon state court prosecutions through the operation of the due process provisions of the Fourteenth Amendment. But in a very recent decision of the California Supreme Court, People v. Modesto (Feb. 11, 1965), 62 A.C. 452, 42 Cal.Rptr. 417, 398 P.2d 753, where the prosecuting attorney (in...