People v. Mitman
| Decision Date | 19 September 1960 |
| Docket Number | Cr. 3808 |
| Citation | 184 Cal.App.2d 685,7 Cal.Rptr. 712 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Henry MITMAN, Defendant and Appellant. |
Richard Henry Mitman, in pro. per.
Stanley Mosk, Atty. Gen., Arlo E. Smith, Peter T. Kennedy, Deputy Attys. Gen., for respondent.
This is an appeal from a judgment of conviction entered on a jury verdict finding the appellant guilty of grand theft. On this appeal from the judgment of conviction, the appellant, in pro. per., argues that he was denied a fair trial because: 1) He was denied a speedy trial; 2) He was denied his right to counsel of his choice; 3) He was denied access to certain statements in the hands of the prosecution; 4) Prejudicial misconduct on the part of the court; 5) He was improperly precluded from cross-examining the complaining witness; 6) Prejudicial error in the remarks of the complaining witness under cross-examination; 7) He was improperly precluded from presenting certain evidence in his own behalf. There is no merit in any of these contentions.
The record reveals the following facts: On January 11, 1959, the complaining witness, one Gerald C. Whitney, a construction superintendent, answered a business opportunities at the office of Construction Estimators Examiner. Whitney met the appellant at the office of Constgruction Estimators in Albany, California, on January 13, 1959. The appellant told Whitney he was a civil engineer in a high tax bracket; that he had more work than he could handle and needed an assistant in his business which consisted of preparing bids for clients on construction jobs and expediting materials and deliveries. The appellant showed Whitney copies of certain agreements between Construction Estimators and various parties and indicated that these were current active contracts with well established contracting firms. The appellant indicated to Whitney that the contracts would yield an income of $85,000 in addition to the fixed monthly payments totaling $1,350 from the five contracts. The uncontroverted evidence showed, however, that the appellant knew that several of these clients were in serious financial difficulty. The appellant also showed Whitney an assignment of $7,000 from James F. Seger.
Later that week, on January 16, 1959, Whitney, accompanied by the appellant and one Carl Mohme, went to Paradise and Chico to orient himself to the kind of business done by Construction Estimators. There, they met one Floyd Helm, an attorney representing United Pacific Insurance Company, and one James Seger, a client of appellant. Several days after their return, on January 21, appellant and Whitney had dinner together and discussed the nature of the business. The appellant produced a partnership agreement. After dinner, the two went to the appellant's office where Whitney signed the agreement which provided that Whitney was to receive a one-half interest in Construction Estimators for $15,000. This amount was to be paid $5,000 in cash and two $5,000 notes payable from the profits of the venture, one in six months, the other in one year. The agreement also provided that the transfer was to be made as of January 31, 1959; that all moneys received after February 1 were to be considered partnership funds; and that a partnership bank account of $1,000 would be opened. Whitney signed the two $5,000 notes about January 24.
Whitney quit his previous employment and reported for work daily in February, 1959. Shortly after he began to work, he was shown a lease purchase agreement whereby West Coast Engine Company was to sign over a rock crushing and asphalt plant in Los Angeles to the appellant. The appellant told Whitney that this rock crushing plant was to be financed by one Ernest Ronin and operated by Mohme. Whitney told the appellant that he would also like to participate in the rock crushing venture and paid the appellant $5,000. The appellant thereupon agreed to let Whitney participate in the venture.
On February 27, 1959, when Whitney assisted the appellant in billing the various clients of Construction Estimators, Whitney saw that the income as represented by appellant did not exist. The March 1 bank statement also indicated that a $2,300 payment made on February 4 by Mr. Helm and $333 payment from a client were not deposited into the partnership funds, in violation of the agreement. The appellant explained to Whitney this was work which had been done before February 1, the date of the partnership. Whitney also saw that the other contracts were either delinquent or nonexistent. The partnership was receiving $500 a month while its monthly office expenses were $1,240. Only $50 had been deposited in the partnership bank account. Whitney requested the return of his money and the notes. The appellant left for Sacramento and Whitney never heard from him again.
One Sam Cain, whose contract with the appellant had been used to impress Whitney, testified that he had gone into bankruptcy and paid the appellant only $500. One Thomas Hanna, whose contract had also been used to impress Whitney, testified that he had a contract with the appellant but had never paid anything because he had never received a bid. Mr. Followell and Mr. James Seger, whose contracts had also been shown to Whitney, testified to the same effect. One Julius Hauso testified he had also answered the same advertisement as Whitney but after inquiries had decided not to invest.
Carl Mohme testified he also answered the advertisement. After paying $4,000 cash to the appellant and signing notes for the balance of $15,000, Mohme received a half interest in the company on February 1, 1959. In March, Mohme rescinded his contract but never received his $4,000. Ernest Ronin testified that he knew the appellant but had never had any business relationship with him and had never authorized the use of his name in connection with the rock crushing venture. One Mr. Wright testified he had negotiated with the appellant about the rock crushing venture and was strongly influenced by Mr. Ronin's strong financial background. These negotiations, however, were never completed.
As indicated above, the only contentions raised are that the appellant did not have a fair trial. There is no question as to the sufficiency of the evidence to sustain the judgment.
The first argument is that the appellant was denied his right to speedy trial. Appellant first argues that the delay between the filing of the original complaint and the preliminary examination was a denial of his right to a speedy trial. The record before us does not contain any of the proceedings prior to the filing of the information on May 29, 1959. The record further indicates that the appellant expressly waived the right to be tried within sixty days after the filing of the information. Pen.Code, § 1382. Appellant cites erroneously section 1050 of the Penal Code, which provides only that trial of criminal cases be set not later than 30 days after the entry of the plea. The record also indicates that a part of the delay was to enable the appellant to obtain an attorney. Appellant's claim that the trial court failed to grant him sufficient time to prepare for trial and at the same time granted an undue amount to the People is not borne out by the record. Finally, no objection was made below and it cannot be raised for the first time on appeal (People v. Jordan, 45 Cal.2d 697, 290 P.2d 484).
The second argument on appeal is that the appellant was denied the right to defend himself at the trial and that his counsel was incompetent. The record does not support these allegations. On July 6, 1959, after waiving his right to a speedy trial, the appellant informed the court he would be represented by counsel, one Mr. Brown. The following day, July 7, 1959, it became clear that Mr. Brown would not appear and the appellant further expressed his intention to have an attorney. Thereafter, one Mr. Halley entered the case on behalf of the appellant and...
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