People v. Grimes, Cr. 924

• Decision Date: 29 September 1952
• Docket Number: Cr. 924
• Parties: PEOPLE v. GRIMES.
• Court: California Court of Appeals Court of Appeals

Page 130

248 P.2d 130

113 Cal.App.2d 365

PEOPLE v. GRIMES.

Cr. 924.

District Court of Appeal, Fourth District, California.

Sept. 29, 1952.

J. David Henningan, Riverside, for appellant.

Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

GRIFFIN, Acting Presiding Justice.

Defendant was convicted by a jury of burglarizing a drugstore in Riverside. He admitted three prior convictions of felonies. Motions for an advised verdict and mistrial were denied. Defendant now contends on appeal: (1) that the evidence is insufficient to sustain his conviction; and (2) that the court prejudicially erred in admitting evidence of other crimes committed by defendant.

In the Arlington district of the city of Riverside the police officers found that the bottom pane of glass in the side door of a drugstore owned by a Mr. Heeres had been kicked or smashed in and the bolt lock pulled back. Entrance to this store was gained in this manner. Two cash registers were found open and the $15 change left in each of them was missing, excepting the pennies and half dollars which were in the rear compartment of the drawer. Several drawers in the prescription room had been pulled open. Two bottles of benzedrine tablets, issued only on prescription, were missing. The stubs of several burned matches were found on the floor. Next to the drugstore, in the rear alley, is Housty's Cafe. Defendant had been in the drugstore and cafe on several occasions. A merchant patrolman had checked the drugstore that evening about 9:30. The screen door was hooked and there was no broken glass in the door at that time. A bartender at Housty's saw defendant in his place of business about 6 p.m. Defendant was in and out at intervals up to one-half hour and on about six different occasions. He had been drinking but not to excess. Defendant called a cab and left at about 11 p.m. The cab man drove him to a liquor store, and after obtaining a bottle, defendant went to his brother's house. Earlier that evening, the cab man took defendant from Housty's to the home of other relatives. A service station attendant saw defendant about 8:30 p.m., when defendant brought his car to the station for some repair work. While the work was being done defendant walked in the direction of Housty's and returned in about 20 minutes. The car was not repaired and defendant departed without it.

An acquaintance of defendant testified he was in the cafe about 9 p.m., saw defendant at the bar, and that defendant left by the front door around 10 p.m.; that he left by the rear door and walked around the front to his parked car; that he saw defendant standing at the side door of the drugstore facing it with his right hand reaching for the door; that defendant did not turn his head; that he started his car and he again looked and saw defendant was still standing in the same position; that he drove away and did not see the defendant again that evening.

The owner of another cafe saw defendant at his place of business about 1 a.m. and testified that he saw defendant and his brother stacking up nickels, dimes, and quarters on the bar. The defendant asked him to change them for four or five one-dollar bills. Defendant bought drinks and food amounting to $1.75 and paid for them in nickels and dimes. Defendant, at one time, had a waitress obtain a dollar bill for some small change, and defendant tipped her with four nickels. Defendant was arrested on December 17th. His right hand had been cut and was bandaged. The officer inquired of him as to the cause and he told him he had injured it while working on his car. He told another officer he cut it on the fan of the car, and on January 3, 1952, he told another officer he cut it on the pan while working on the transmission. Other witnesses stated that they did not notice any cut on defendant's hand the evening of the burglary. Officers went to defendant's residence and conversed with his wife. She went to the bedroom and returned with a bottle containing benzedrine tablets. It was the same kind of a bottle the tablets came in when purchased from the wholesalers and was not be kind used by drugstores in dispensing the tablets. The druggist testified he had a cost mark on all such bottles. None appeared on this bottle, but one witness testified there was evidence that it had been erased. The officers took the bottle to defendant in jail, put it on the table, and said doing. Defendant commenced to laugh and said in effect: 'Oh, I see my wife is trying to put something over on me. She can't even testify against me.'

A mere reading of the evidence, when considered as a whole, together with the allowable inferences, clearly demonstrates that there was sufficient evidence to support the verdict. People v. Goodall and Dean, 104 Cal.App.2d 242, 231 P.2d 119; People v. Mercer, 103 Cal.App.2d 782, 230 P.2d 4; People v. Grischott, 107 Cal.App.2d 631, 237 P.2d 712; People v. Kepford, 10 Cal.App.2d 128, 51 P.2d 429; People v. Carroll, 79 Cal.App.2d 146, 179 P.2d 75.

A close question arises in reference to the other claim. Counsel for defendant, who tried the case and who has been appointed by this court to represent the defendant on this appeal, has ably presented defendant's cause. At the trial defendant admitted the prior convictions of felonies as charged, and did not testify. The prosecution offered evidence of similar offenses to that charged, under the claim that such offenses were similar in their commission, and the modus operandi was so much like the method used in the instant case as to be admissible under the general principle enunciated by our Supreme Court in People v. Peete, 28 Cal.2d 306, 169 P.2d 924, and cited cases. The court permitted the proffered evidence, under an instruction limiting the consideration of the evidence by the jury for the purpose only of showing the identity of the person who committed the alleged crime, if it was committed; that the defendant entertained the necessary intent; and that there existed in the mind of the defendant a plan, scheme, system or design, for the commission of the offense, and not to prove other and distinct offenses.

Evidence was taken that defendant, in May, 1941, broke into Stevenson's Drugstore in Riverside, between 11 p.m. and midnight, by kicking out the glass in the side door and crawling in; that a certain amount of change was taken from two cash registers therein, as well as a bottle of whiskey; that defendant later engaged a taxicab and consumed about half of the liquor. Further evidence was produced that on November 19, 1941, he attempted to burglarize the Banks's Drugstore in Riverside between 10 and 11 p.m. by kicking in the glass door at the bottom but that he was, for some reason, frustrated in his efforts and that that same evening he did burglarize the Fairmount Drugstore, and gained entrance by kicking out the glass in one of its two doors; that he took the change on hand in the cash registers and had some drinks; that he then called a cab and at the Park Inn he exchanged six half dollars for three one-dollar bills.

It was then shown that on August 24, 1943, during the evening, defendant was seen beating on the glass door of the Corona Hardware store. After a chase he was apprehended. He apparently had $50 in his possession and quite a sum of it was in small change. Defendant at that time had already burglarized the Stewart's Pharmacy near there by kicking out the glass in the bottom part of the locked door and took money from two cash registers. Some of this evidence consisted of signed statements and admissions or confessions by the defendant of these burglaries.

The prosecution then offered in evidence, over objection, as before, the testimony of the clerk of the court, reading into evidence the information charging defendant with the crime of attempt to burglarize the Banks' Drugstore, the burglary of the Jones Drugstore in 1941, the burglary of the Stewart's Pharmacy in 1943, and defendant's plea of guilty to these charges.

It is defendant's contention that the prior conviction of burglary on August 28, 1943, as charged in the information and admitted by defendant, should not have been admitted in evidence since defendant admitted this charged prior conviction. He cites in support of this argument section 1025 of the Penal Code which reads in part that in case the defendant answers 'that he has suffered the previous conviction, the charge of the previous conviction must not be read to the jury, nor alluded to on the trial.' There is no merit to this argument if the facts of the previous offense come within the exception hereinafter noted. People v. Peete, supra, 28 Cal.2d at page 319, 169 P.2d at page 932.

Defendant concedes that evidence of other crimes is permitted to prove common scheme, system, design, and intent, but avers that past cases indicate such practice is permitted only in relation to crimes committed in the same series; that there is no sufficient evidence of similarities in scheme, system or design in the offenses here established, and they do not contain such common elements peculiar to the modus operandi of this defendant which would make it relevant here to admit the evidence herein referred to and, if so, the rule does not permit such evidence dating back eleven years. He cites such cases as People v. Hobbs, 37 Cal.App.2d 8, 98 P.2d 775; People v. Guthrie, 103 Cal.App.2d 468, 229 P.2d 841; People v. Bartnett, 15 Cal.App. 89, 113 P. 879; and the dissenting opinion of Mr. Justice Carter in People v. Peete, supra.

The general rule, so recently applied, is stated in the majority opinion in People v. Peete, supra, and as reviewed in People v. Burns, 109 Cal.App.2d 524, 534, 535, 241 P.2d 308, 315, which latter case recites:

'People v. Peete, 28 Cal.2d 306, 169 P.2d 924, contains a long list of California cases and certain law review articles on the subject of the admissibility of evidence of other crimes than the one...