People v. Fulton
| Decision Date | 10 January 1961 |
| Docket Number | Cr. 7157 |
| Citation | 10 Cal.Rptr. 319,188 Cal.App.2d 105 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Garvey Frank FULTON and Vernon Perkins, Defendants and Appellants. |
Earl C. Broady, Los Angeles, for appellants.
Stanley Mosk, Atty. Gen., and Clara E. Kauffman, Deputy Atty. Gen., for respondent.
The information herein contained two counts. In each count, the defendants were charged with attempted grand theft, a felony. It was alleged in the first count that the person whose money they attempted to obtain was Clyde Fisher. In the second count, the name of the intended victim was stated to be Hugh L. Powers. Having been found guilty as to each count in a trial in which each defendant waived his right to trial by jury and having been sentenced to the state prison for the term prescribed by law, each defendant has appealed from the judgment against him.
Pursuant to a stipulation, the case of the People was submitted upon the transcript of the testimony given at the preliminary examination and the exhibits there received. Neither defendant testified. The contentions on this appeal are that, with respect to each count, the evidence was insufficient to establish the requisite specific intent and that the evidence was insufficient to show that the acts of the appellants constituted an attempt to commit grand theft as distinguished from mere preparation. It is, therefore, necessary to summarize the evidence.
Clyde Fisher testified that on April 24, 1959, during the noon hour, the appellant Fulton approached him near where he was working as a painter and asked him as to the location of the Watson Hotel. The witness stated that he knew of no such hotel. Fulton said that he was from Jamaica and had arrived at San Pedro on a ship which would be in port for 21 days. He further said that he had met a girl in San Pedro, had bought her a few drinks and given her $50, and she had promised to meet him at the Watson Hotel in Long Beach. Fulton told the witness that he had $1,000 in his pocket and $3,000 'around his belt.' He 'pulled out a wad of bills that looked about that big' and exhibited it briefly. Fulton said that his captain, who was from Stalingrad, had advised him 'to be awful careful around here.' The witness told Fulton he should put the money in a bank because otherwise someone might kill him to get it. Fulton replied that his captain had told him that the rich people did not allow the poor people to have any money here. In response, the witness said he had money in the bank which he could withdraw whenever he wanted to do so.
During the course of the conversation, the appellant Perkins, who appeared to be lame, came upon the scene and was asked by Fulton about the Watson Hotel, the story of the girl in San Pedro being repeated. Perkins replied that there was no such hotel and that Fulton had 'been taken.' Fulton also told Perkins of his money. Perkins suggested that Fulton stay at the Y.M.C.A.; the latter offered Perkins money if he would drive him there. Perkins said he was a preacher's son. All three got into the automobile which happened to be just across the street. Fulton told the witness he would give him $300 if he could prove to him that, if a man put money in a bank in America, he could withdraw it. As they drove along, Fulton said, 'I will raise that to $500 if you will show me you can get your money out of the bank.' Fulton said that if he could, then the witness could put his money back in the bank and that he would also deposit his money. So they went to the witness' place of residence and obtained his bank book. On the way there Fulton threw the 'thousand dollar roll' to Perkins saying, They drove to the vicinity of the bank. Perkins pretended to take a $50 bill from the roll so that he could see if it was counterfeit and then gave the roll back to Fulton. Perkins then told Fulton to get up so he could search him to see if he had any guns. He searched him and then told the witness, 'I think we are safe.' Fulton refused to go in the bank with the witness and Perkins, saying that he might receive 'a kick in the rear' if he went in and he was afraid. The witness asked the teller for $6,000. This was through a mistake on his part, since his bank balance was $5,621. He discussed with the teller the matter of the loss of interest upon such a withdrawal. Finally, the teller left and went over to a vice president, who called the witness into his office. After discussing the matter with the vice president, whom the witness had known for some time, he was told that it was 'a bunco game.'
In the meantime, Perkins had a bill changed and then sat down in the bank. The bank officer called the police. The police gave the witness two envelopes and told him to return to the automobile. When the witness returned to the place where it had been parked, it was gone. However, he stood there and soon Perkins and Fulton came down the street in the automobile. The witness then testified: 'Both of them was in the car at that time and they stopped and they looked at me. * * * I hesitated and stood there and then they * * * started up and just then the police closed in on them * * *.' They were arrested. The officers found 'this wad of bogus money' and a paper sack which appeared to be full of money.
A teller testified that on the particular day she saw Perkins standing behind Mr. Fisher at another teller's window. She asked him if she might help him. Perkins said she could and asked for four five-dollar bills in exchange for a $20 bill. Thereafter she saw him sitting on a chair in the lounge.
Hugh Leslie Powers testified with respect to the second count. On April 23 (the day before the Fisher incident), the appellant Perkins approached him as he was walking around the corner of Sixth and Walnut. Perkins, who was lame, beckoned to him and showed him a little piece of paper on which was written 'Mary Brown' and the name of a hotel. The witness told Perkins that he knew of no such hotel. Perkins said that Mary Brown had met him as he arrived in San Pedro on a boat; he had given her $50. The witness testified that Perkins then 'flashed this roll of dough.' Perkins said he had never been in this country before. He was from Martinique and had been aboard a ship which had come from behind the Iron Curtain. He 'tried to' speak with an accent. His ship was to be in port for three weeks. Perkins informed the witness that he had $3,500 in a money belt.
Appellant Fulton then appeared on the scene. During the course of the ensuing conversation, Fulton said that he was a Baptist minister's son and had lived in Long Beach for 20 years. At first, the witness thought that Fulton was a boy who formerly took care of his lawn. The witness told Fulton that he should take Perkins to the Y.M.C.A. 'or somewhere' and obtain a room for him so that he would not be robbed. Fulton said that he did not want to become involved in it and that he had worked for Mr. Russell 'up the street there' for a number of years. Perkins wanted to give the witness $50 'to help him get squared around.' The witness said he did not want his money and suggested to Perkins that he put his money in a bank. Perkins said he was afraid of a 'money house' because his captain had told him that, if you put your money in there, you could not withdraw it. The witness said that that was ridiculous and he would take him to his bank so that Perkins could deposit his money where it would be safe from theft. Perkins asked him if he had a 'money book.' The witness answered that he had, but Perkins did not believe him. So the witness said that he would get his bank book and go to the bank with Perkins to 'draw out a little money to show you that I can draw the money out.' The witness went upstairs to get his bank book; he had over $800 in that bank. However, he was suspicious and so he left his wallet, ring and watch in his home when he returned to the street where Fulton and Perkins were waiting.
Fulton happened to have an automobile which was parked in front of the witness' apartment. But instead of going to the location of the bank, Fulton stopped at another place near the bank; the appellants wanted the witness to explain 'this story' again. They both looked at his bank book and wanted to know if that was all the money he had. Perkins said that he would not go into the bank with the witness because they would 'kick him out.' Fulton said he would go in, but the witness said there was no use of that. The witness stated that he would not go in the bank and get the money to show them. Finally, after Fulton said that Mr. Russell would take care of the matter and make $300, they took the witness home. As he got out of the car, Perkins said to him, 'Well, you people have no money, you didn't have no money down there.'
On cross-examination, Mr. Powers stated that as he left the house his wife remonstrated with him but he told her he would not 'get taken for anything.' He testified that he intended to take Perkins into the bank and write a counter check for $100 to show him that he could get some money out of the bank. His account was a savings account. One of the appellants said, 'You can't get $800 out of there.' On redirect examination, the witness said, 'I told him I wouldn't walk out of the bank with any money at all.' He intended to take money out to show Perkins and then redeposit it. He said that he would not accept any money from Perkins.
Joe W. Morrill, a police officer for the city of Long Beach, testified as to the arrest of the appellants. In a pocket of Fulton's trousers was found a roll of bills. Fulton said that he was a gambler and used the bills to impress people...
To continue reading
Request your trial
-
People v. Memro
... ... Buffum (1953) 40 Cal.2d 709, 718, 256 P.2d 317.) However, "[a]n overt act need not be the ultimate step toward the consummation of the design; it is sufficient if it is the first or some subsequent act directed towards that end after the preparations are made." (People v. Fulton (1961) 188 Cal.App.2d 105, 116, 10 Cal.Rptr. 319; see People v. Lyles (1957) 156 Cal.App.2d 482, 319 P.2d 745; People v. Gibson (1949) 94 Cal.App.2d 468, 210 P.2d 747.) ... Some Courts of Appeal have suggested focusing on the accused's intent rather than on the degree to which ... ...
-
Huebner v. State
...This type of an attempt is completed even though it fails solely because of mental resistance of the victim. People v. Fulton (1961), 188 Cal.App.2d 105, 10 Cal.Rptr. 319. See also Sayre, Criminal Attempts, 41 Harvard Law Rev. 821, 847; Perkins, Criminal Attempt and Related Problems, 2 U.C.......
-
People v. Staples
...(People v. Grant, 105 Cal.App.2d 347, 356--357, 233 P.2d 660). Another first category example is highlighted in People v. Fulton, 188 Cal.App.2d 105, 10 Cal.Rptr. 319. The factual setting and legal reasoning in Fulton is well characterized by Justice Kingsley in People v. Orndorff, 261 Cal.......
-
People v. Lane
...the trier of fact to determine which version is to be believed.' People v. Acosta, 45 Cal.2d 538, 542, 290 P.2d 1, 4; People v. Fulton, 188 Cal.App.2d 105, 10 Cal.Rptr. 319; see also People v. Johnston, 48 Cal.2d 78, 83, 307 P.2d 921. There was sufficient evidence to support a finding that ......