People v. James

• Citation: 318 P.2d 175,155 Cal.App.2d 604
• Decision Date: 27 November 1957
• Docket Number: Cr. 5793
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas JAMES, Defendant and Appellant.

Page 175

318 P.2d 175

155 Cal.App.2d 604

The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas JAMES, Defendant and Appellant.

Cr. 5793.

District Court of Appeal, Second District, Division 3, California.

Nov. 27, 1957.

Thomas James, in pro. per., for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

Thomas James was accused by information of a violation of section 667 of the Penal Code (petty theft with a prior felony conviction) in that he took $35 in money and a bottle of whiskey of the value of $5.50, the property of William Aulwes, having previously suffered a conviction of receiving stolen goods, a felony, in Pennsylvania, and having served a term of imprisonment in the state prison therefor. Defendant pleaded not guilty and denied the prior conviction. Trial was to a jury which found him guilty of petty theft with prior conviction of felony. Defendant's motion for a new trial was denied. Probation was likewise denied and James was sentenced to imprisonment in the county jail for the term of one year. He appeals from the judgment and the order denying him a new trial.

The conviction was based upon evidence of the following facts. William Aulwes testified that his son, Bud Aulwes, was the proprietor of the Tower Cafe, a barroom located at 6211 South Normandie in the City of Los Angeles. Mr. Aulwes was tending the bar on April 11, 1956, while his son was away from the premises. Defendant entered the cafe at approximately 1 p. m. in the company of a man named Sepulveda who left immediately thereafter. Defendant sat down at the bar, ordered several drinks, and then asked Mr. Aulwes if he could see Bud. Aulwes replied that Bud was out, but would be back in a few minutes.

A delivery of two small packages of liquor was made at the bar. Mr. Aulwes went to the cash register, which was located behind the middle of the bar, and asked the deliveryman if he would take some checks. The cash register contained a few customers' checks, a number of bills of various denominations, some loose change, a $10 roll of quarters and seven $5 rolls of dimes. The coins were rolled in brown paper. The bar had an opening with a counter and the counter was hanging up so that a person in front of the bar could walk through the opening and gain access to the cash register.

Mr. Aulwes gave two checks to the deliveryman and then went back to talk to defendant who was the only customer on the premises. He left the cash register open. Defendant asked him where Bud was and Aulwes answered that he knew where to locate his son. Defendant told Aulwes that he would buy him a drink if he would telephone Bud. After some coaxing Aulwes agreed. Defendant then went to the telephone booth, which was located behind an archway at the rear of the cafe, and placed a call. After returning to his stool at the bar, he asked Mr. Aulwes whether he was going to telephone Bud. Aulwes went to the booth, called Hank's Place and ascertained that his son had just departed He could not see the cash register from the telephone booth because of the archway. As he came out of the booth he saw defendant walking from the counter toward the door. There was no one else in the establishment.

Bud Aulwes entered the cafe in the company of several other men. Defendant asked him if he would take a bet but he refused. Bud testified that defendant was at the bar talking to his father when he arrived, although he also stated that defendant was standing in the middle of the floor drinking beer when he first saw him. Defendant left the premises immediately after speaking to Bud. A few minutes later, both Bud and his father noticed that a fifth bottle of Haig & Haig whiskey, which had been about half full, was missing from the back shelf near the cash register; it had been on the shelf before defendant came in. The elder Mr. Aulwes looked in the cash register and discovered that four $5 rolls of dimes and a $10 roll of quarters were also missing.

Lawrence Johnson testified that defendant and Sepulveda had whiled away the morning in his apartment drinking wine. Defendant asked Johnson if he knew a place where he could make a bet. Johnson recommended the Tower Cafe and offered to write a note to Bud Aulwes for defendant but he did not do so. Defendant and Sepulveda left the apartment at 11:30 a. m. Shortly before 1 p. m., Johnson received a telephone call from defendant. Defendant asked him to come to the Tower Cafe and make a fast $80, but Johnson refused. Defendant also said something about paying a $17 debt which Johnson owed to Bud Aulwes. Sepulveda returned to Johnson's apartment and defendant came in a few minutes later. James put four or five quarters and twelve or fifteen dimes on a coffee table and told Johnson that he had gone behind a bar and taken the coins out of a drawer. The three men then went to the 62 Club where they had several beers.

Mrs. Aasen, the proprietor of the 62 Club, testified that defendant paid for the drinks with coins, which were probably dimes, and also exchanged $3 in dimes for dollar bills. Bud Aulwes arrived a few minutes later, saw defendant in the company of Johnson and Sepulveda, and telephoned the police.

Officer Peterson of the Los Angeles Police Department was the investigating officer in the case. He testified that he had a conversation with defendant on the afternoon of April 12th at the police station. He asked defendant whether he had taken money from the cash register at the Tower Cafe and defendant said that he had not taken any. The officer asked James where he obtained the coins he exchanged at the 62 Club and defendant replied that he won the money gambling. Peterson also stated that on April 23rd he found a roll of dimes wrapped in brown paper in a vacant lot next to the Tower Cafe. Johnson had told him the roll was there. The paper used to wrap the coins was described by William Aulwes as being similar to the paper used to wrap the dimes he had in the cash register.

The People introduced in evidence a certified copy of a judgment of the Court of Oyer and Terminer for Bucks County, Pennsylvania, and certified copies of records of the Bureau of Identification of the Eastern State Penitentiary, Philadelphia, Pennsylvania. These documents, together with copies of defendant's fingerprints, established that defendant was sentenced on May 23, 1944 to a term of 18 months to 4 years in the state penitentiary following a plea of guilty to the charge of receiving stolen property, that he was imprisoned from May 23, 1944 until May 22, 1945, and that he was discharged by court order.

Defendant, testifying in his own behalf, denied taking either the money or the bottle of whiskey and denied telling Johnson that he had taken coins from the cash register. He admitted telephoning Johnson from the cafe, but stated that he asked Johnson to come down and play a game of pool with him while he waited for Bud Aulwes. Johnson refused to come because he owed Bud $17. Defendant stated that he told Johnson not to worry because he had a fast $18 to pick up. He intended to place a $5 bet on a horse running in the second race at Santa Anita that afternoon and according to the morning odds a winning ticket would pay $18. When Bud Aulwes returned to the cafe he asked him whether he would take a bet and Bud accepted the bet. He changed the dimes into dollar bills at the 62 Club because he wanted to use the bills to pay a doctor he was planning to see that afternoon for a physical examination in connection with a new job; the examination cost $2.50. He had the dimes with him when he left home that morning. On cross-examination he admitted the prior felony conviction.

Defendant has filed a brief in propria persona. It is adequate as a presentation of all the points that could be urged in his behalf. We have made a thorough examination of the record and have discovered no insufficiency of the evidence and no error at the trial.

Defendant argues the following points in his brief: (1) The court erred in permitting the district attorney to refresh Johnson's recollection; (2) There was insufficient evidence to prove that he was guilty of petty theft; (3) There was insufficient evidence to establish that he served a term in a penal institution upon his prior felony conviction, as required by section 667 of the Penal Code.

There is no merit to the argument that the court erred in permitting Johnson's recollection to be refreshed by reading his testimony at the preliminary hearing and his signed statement, as urged under the first point. When asked at what time defendant telephoned him on April 11th, Johnson replied that he could not recall. The deputy showed him the transcript of his testimony at the preliminary hearing and asked him whether it refreshed his memory; Johnson replied in the affirmative and resumed his testimony. When asked whether defendant said anything when he placed the coins on the table, Johnson answered that he could not remember. In response to the deputy's questions, he stated that he did not know whether his memory was better at the time of the preliminary hearing than it was at the time of trial, that his memory was no better on April 12th than it was at the time of trial, and that he could not swear that he was telling the truth at the preliminary hearing because he was under the influence of liquor when he had the conversations with defendant. After a reading of his testimony at the preliminary hearing failed to refresh his memory, the deputy showed him a statement he had signed on April 12th, the day following the occurrences he had related in his testimony. Upon being asked whether the signed statement refreshed his recollection, Johnson replied that it did. The witness was permitted to read the transcript and...