People v. Howes

• Decision Date: 16 October 1950
• Docket Number: Cr. 2667
• Citation: 222 P.2d 969,99 Cal.App.2d 808
• Parties: PEOPLE v. HOWES.
• Court: California Court of Appeals Court of Appeals

Page 969

222 P.2d 969

99 Cal.App.2d 808

PEOPLE v. HOWES.

Cr. 2667.

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

Oct. 16, 1950.

I. B. Padway, San Jose, John R. Golden, San Francisco, of counsel, for appellant.

Fred N. Howser, Attorney General, David K. Lener, Deputy Attorney General, June D. Borina, District Attorney, Santa Cruz County, Santa Cruz, for respondent.

PETERS, Presiding Justice.

Appellant, Vernon LeRoy Howes, was found guilty of grand theft. From the judgment of conviction and from the order denying his motion for a new trial this appeal is prosecuted. Appellant contends that the information was insufficient, that the evidence, at most, shows a series of petty thefts and not grand theft, and that prejudicial error was committed by the trial court in its rulings, instructions and comments. There is no merit in any of these contentions.

Facts.

Crowley and Traulsen, a partnership, operate a general garage business in Watsonville. The garage operated a tire department which was the exclusive distributor of Firestone tires in the area. For three years prior to July of 1949, when his employment was terminated, appellant had been employed in the tire department of the garage, and for a year prior to that date had been in charge of that department. As head of that department he was responsible for the purchase and sale of all tires by the garage. He spent part of his working hours in the country soliciting business and making deliveries, and part of his time at the garage. He was paid for his services on an hourly basis, and also was promised by the partners a commission, but whether on net or gross profits is in dispute. Admittedly, no commissions were ever paid, and this fact was a source of friction between the parties.

The books of the garage were kept by a bookkeeper employed by the partnership. The accounts receivable ledgers showed accounts in the names of James Cantrell, Byers Garage, Charles Manfre, Richard Barnes, Tony Simas and Lloyd Mitchell. The evidence shows that appellant sold to the company and persons above mentioned, and to others, tires belonging to his employers, and pocketed the proceeds. In practically each case he represented to the persons he dealt with that he was engaged in business for himself as well as for his employer, and that the tires, which he sold for less than the usual price, were his tires.

The modus operandi of appellant can best be explained by a reference to the testimony of some of the witnesses. Cantrell testified that he operated a fleet of trucks in his produce and hay business; that he bought tires from appellant because he could get them cheaper than elsewhere; that when he first dealt with appellant he did not know that appellant was employed by Crowley and Traulsen; that appellant told him that he was buying tires in Salinas and Los Angeles and selling them for himself; that he made several purchases from appellant; that he paid appellant by checks made out to appellant or to cash; that the checks were for $88.65, $77 and $54; that a couple of months after he had paid for the tires he received a bill from the garage for the same tires; that he immediately went to the garage and talked to appellant who told him: 'Don't worry about it, it is just a mistake; it will be all fixed up, cleared up'; that this occurred in June or July of 1949; that during the next month he made another purchase from appellant, and, at the end of that month, received another statement from the garage billing him for all of the tires he had purchased; that he did not know that these tires belonged to the garage.

Byers testified that he operates a garage; that in June or early in July, 1949, he bought two tires from appellant, giving appellant $56.64 in cash; that several weeks later he received a bill from the garage for $476.16, which billed him for the tires he had purchased and for many others that he had not purchaed or ordered; that he asked appellant what the bill meant, and was told 'it was just more or less routine'; that at his request appellant wrote on the bill 'paid Roy.'

Mitchell testified that he operates a tire shop; that in September, 1949, he was billed by the garage for $279.71; that included in the bill was a charge of $158.40 for tires and tubes which he had neither ordered nor received; that the spurious charge was on an invoice dated July 26, 1949; that he telephoned to the office girl at the garage and did not pay the $158.40.

Golarte is a truck driver and lettuce loader. He testified that in May, 1949, appellant brought three tires to his home and asked him to deliver them to one Manfre who had purchased them, and to collect $120 from Manfre; that he delivered the tires to Manfre who gave him a check made out to cash for $120; that upon appellant's direction, and in his presence, he cashed the check at a bar and appellant picked up and pocketed the money; that appellant then bought him a drink and left some money at the bar for Golarte to purchase drinks.

Manfre testified that a day or two before Golarte delivered the three tires he had discussed the purchase of tires with appellant; that appellant told him that Golarte had three tires for sale; that when Golarte delivered the tires he believed that the tires belonged to Golarte, and gave him the $120 check.

Simas testified that he made several purchases of tires from appellant and paid for them by checks made out to cash and delivered to appellant, or by checks made out to his employee Pini, who endorsed them to appellant; that he was billed by the garage for $102.23; that after appellant was arrested he discussed this bill with appellant; that appellant gave him a check for $100 on the morning of his preliminary examination; that the witness then called the polilce in appellant's presence and told them that appellant had paid him and that he was going to take the check to the garage; that the check was not honored by the bank on which it was drawn, appellant having no account there; that he thought appellant owned and operated the tire shop in the garage, and that the garage allowed him to use their billheads.

Pini, an employee of Simas, testified that he bought tires from appellant at the garage and paid for them with checks made out by Simas to himself or to appellant; that one check was for $25, and another for $30.

Barnes, who lived in Hollister and was a general trucker, testified that he purchased six tires from appellant at the garage; that for these he gave appellant two checks payable to cash, one for $112.47 and one for $100, and another check payable to appellant for $162; that later he was billed for these tires by the garage; that the tires were all Firestones and delivery was made in Pajaro.

The Salinas store manager for the Firestone Company, one Fagan by name, was shown a statement on Crowley and Traulsen's billhead dated May 27, 1949, which indicated that the Salinas store had borrowed twelve truck tires from appellant's garage, and testified that the cost of such tires would have been over $900; that he had never received the tires and had never heard of the merchandise invoiced therein; that appellant had never personally bought tires from the Salinas store.

The garage bookkeeper testified that most of the sales tags for the tire department of the garage were made out by appellant, and she identified many such tags as being in the handwriting of appellant. These were the tags that were used as the basis for sending bills to Cantrell and the others.

Crowley, one of the partners, testified that after he discovered that Manfre had three Firestone tires he checked the inventory and found no shortages, because entries had been made to cover up the shortages.

Jacobson, a Watsonville police officer, talked to appellant on July 29, 1949, in the police station. He testified that he confronted appellant with certain canceled checks and asked him to explain them; that appellant stated that he was selling tires on his own, that is, that he would sell 'on the side to somebody, make a couple of dollars on it, then I would replace the tires in stock'; that he would keep the inventory straight by buying tires from brokers and thus replace those he had taken; that appellant, at that time, signed a statement, which, in part, stated: 'About six months ago I started to sell some new tires at a small margin of profit. I used the money to replace the tires and kept the profit I made on the sale. As near as I can remember, I made about 30 sales in this period of time which netted me approximately $200. I'm sure it was not over this amount. This is all I ever took from the garage.'

Another Watsonville polilce officer, Dicks by name, testified that on August 5, 1949, appellant was re-arrested when it appeared that the shortage was greater than at first thought, and at that time appellant made to him substantially the same statements made to Jacobs.

Appellant took the stand in his own defense and told a story that was contradicted by other witnesses in almost every respect. He testified that after the garage failed to give him a commission on tire sales, he started to buy and sell tires on his own account. Some of these tires, he said, he purchased for cash at the Salinas Firestone store, that store billing them to a Salinas service station. Fagan, the Salinas manager, positively denied this. Appellant also said that some of the tires were purchased from the Firestone San Jose store. This was denied by the operators of that store. Appellant denied ever selling tires belonging to the garage. He purported to explain the Golarte-Manfre transaction by testifying that the tires belonged to Golarte and that he, the appellant merely told Mantre about Golarte. He denied making one cent on the transaction. This story was directly denied by Golarte. Some of the checks cashed by him he identified as being given by him for tires which he had sold personally to Simas and...