People v. Griffin

• Citation: 162 Cal.App.2d 712,328 P.2d 502
• Decision Date: 12 August 1958
• Docket Number: Cr. 3461
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Lawrence GRIFFIN, Defendant and Appellant.

Page 502

328 P.2d 502

162 Cal.App.2d 712

The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Lawrence GRIFFIN, Defendant and Appellant.

Cr. 3461.

District Court of Appeal, First District, Division 2, California.

Aug. 12, 1958.

Hearing Denied Oct. 10, 1958.

Donald M. Sea, Oakland, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

DOOLING, Justice.

Appellant Griffin was charged jointly with one Homer Stephen in two counts of uttering and publishing two forged checks. The two were tried jointly and the jury returned a verdict of guilty against appellant on both counts.

The evidence showed that on May 10, 1957, one Herndon was working as a clerk in a liquor store in Oakland. At approximately 6:45 p. m. appellant entered this store and presented a payroll check in the amount of $63.10 drawn on Allenite Products Company's bank account with Griffin as payee. At the trial Herndon testified that Griffin presented for identification a Social Security card and a Blue Cross card both bearing his name. (At the preliminary examination Herndon had testified that appellant offered no identification.) Appellant endorsed the check and Herndon cashed it noting on the check appellant's description.

At approximately 9:45 the same evening defendant Stephen entered the store and presented an Allenite check for $68.15 with Griffin as payee. The same identification was offered. Herndon passed a note to one of the people in the store to call the police and at this time Stephen left.

Shortly thereafter the police apprehended Griffin and Stephen near the liquor store. Officer Holmes saw appellant throw a wallet in the gutter and found a union card in this wallet bearing appellant's name.

Herndon identified appellant as the person passing the first check and identified Stephen as the one who attempted to cash the second check. When appellant was identified at this time he was in a police car 4 or 5 feet from Herndon but he said nothing. He was again identified at the trial.

Leith Allen, owner of Allenite Products Company, testified that on May 2, 1957, he discovered that several of the company's checks were missing. He identified as two of the missing checks the check cashed by appellant and a torn check found in the area where appellant was apprehended. The checks were forgeries drawn to appellant and signed without authorization.

Inspector McChesney testified that he and Inspector Olsen visited appellant at the county hospital on May 14, 1957. At this time appellant, when asked about the forged checks, stated 'I cashed two of them' and 'I tried to cash the third one when the cops came and I ran.' The inspector further testified that appellant asked him to go to his room and 'see my clothes are taken care of, and then call my mother and have her go down and pick them up.' In appellant's room the inspectors found on a table in plain sight eight blank checks of the Allenite Company and a laundry slip bearing appellant's name. On the back of the slip was the name Wayer or Wager, the same name that appeared as maker on the forged checks.

Appellant denied admitting that he passed the checks and testified that he was with one Joseph Williams during the evening of May 10, 1957. Williams testified that he was with appellant from 6:30 p. m. to approximately 9 p. m. that evening. Appellant denied asking the inspector to go to his room and he denied any knowledge of the checks and that he was in the liquor store. Two witnesses who were in the liquor store on May 10 testified that they saw Stephen but neither could recall seeing appellant.

A question is raised whether the notice of appeal was filed in time. The last day to file was September 26, 1957. The notice of appeal was put in the hands of a person assigned by the prison authorities on September 25. The envelope in which it was mailed at Vacaville was postmarked September 26. It was not filed until September 30 and we have the affidavit of a deputy county clerk that would indicate that it was not received before the date of filing. We can take judicial notice that if mailed at Vacaville on September 25 in normal course it might be expected to received in Oakland some time on September 26. Under People v. Slobodion, 30 Cal.2d 362, 181 P.2d 868, we are justified in holding that the notice of appeal was constructively filed in time.

Appellant claims that the blank checks and laundry list found in his room were seized as the result of an illegal search. The officer testified that appellant requested him to go to his room and although appellant denied this the resolution of this conflicting testimony was the proper function of the trial court. That court accepted the officer's version. Once in the room the checks and laundry list were in plain sight. The officer, being lawfully in appellant's room, although he could not make a search beyond the scope of the appellant's permission, was not required to close his eyes to what appeared openly obvious to his observation. People v. Roberts, 47 Cal.2d 374, 379-380, 303 P.2d 721.

Appellant argues that the resolution of the conflicting evidence to determine whether appellant...