People v. Naughton

• Decision Date: 20 February 1969
• Docket Number: Cr. 536
• Citation: 75 Cal.Rptr. 451,270 Cal.App.2d 1
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Merle Oliver NAUGHTON, Defendant and Appellant.

Page 451

75 Cal.Rptr. 451

270 Cal.App.2d 1

The PEOPLE, Plaintiff and Respondent, v. Merle Oliver NAUGHTON, Defendant and Appellant.

Cr. 536.

Court of Appeal, Fifth District, California.

Feb. 20, 1969.

Hearing Denied April 17, 1969.

[270 Cal.App.2d 3] Russell E. Parsons, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Nelson P. Kempsky and Talmadge, R. Jones, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

CONLEY, Presiding Justice.

The defendant, Merle Oliver Naughton, was convicted by a jury of burglary in the second degree in that on December 27, 1966, he unlawfully entered a restaurant at 2790 South Railroad Avenue in Fresno with intent to commit theft therein. The defendant pleaded not guilty but admitted a prior conviction of forgery in the State of Iowa on or about the 19th day of February, 1938. In the instant case, his application for probation was denied, and he was sentenced to state's prison.

A comprehensive brief was filed by the appellant urging the following alleged grounds for a reversal of the judgment:

1) The evidence was insufficient to sustain a verdict of guilty;

2) The alleged failure of the arresting officers to comply with the requirements of section 1531 of the Penal Code made the entry into the Naughton apartment and defendant's subsequent arrest illegal;

3) The trial court erred in not striking the testimony of the officers as to the teletype abstract of the arrest warrant used by them and requiring the production of the original warrant;

4) The criminal complaint was insufficient to support the issuance of the arrest warrant, and, hence, the arrest was illegal and all evidence obtained by the officers' search at the time of the arrest was illegally obtained and inadmissible;

5) As the car used by defendant was some distance from the apartment wherein Naughton was arrested, and its search was somewhat later, the search was illegal;

6) The identification of Naughton at the 'Four Wheels Restaurant' in Fresno was insufficient to connect him with the alleged burglary of that building or to support the verdict of guilty.

Grounds numbered (1) and (6) may be considered together as they raise the same basic question. This contention by the appellant is supported principally by several specifications of evidence on behalf of the defendant which doubtless constituted a powerful jury argument in the first instance, but it has no merit on appeal. As a conviction has taken place, it is our duty to consider the facts proven on behalf of the state as paramount, and we shall of necessity adhere to that rule. The identification of the defendant, contrary to his own contention, was supported by ample substantial evidence and the jury so found.

Pauline Guthrie testified that she worked at the 'Four Wheels Restaurant at 2790 South Railroad Avenue in Fresno; on December 27, 1966, two men came in for coffee; one was a small fellow who was Latin or Oriental; one was tall and wore glasses. The smaller man came in first and sat down, and the taller one came in behind him. The shorter man paid for the coffee. The restaurant operator was doing the cooking that morning. After the two men left the restaurant, an alarm went off in the kitchen and the operator came running out to the front door. Miss Guthrie looked out of the window and saw the owner at the phone booth; he was writing something on a piece of paper as a car with the two men in it was leaving the driveway; she said that the taller fellow looked familiar in a picture that she was shown some three weeks later by a deputy from the sheriff's office and a representative of the telephone company; however, she did not positively identify him until she got into the courtroom on the morning of the trial; she then saw the tall man sitting in the courtroom, and she was more certain that he was one of the defendants who had come in for coffee on December 27.

Alfred Isaacson, the restaurant owner, testified that the telephone coin box was stolen from a telephone booth of the restaurant on December 27, 1966; that he had noticed two men, one of about medium height wearing a jacket and a polo shirt, and the other, a little taller, wearing a suit and tie, dark-rimmed glasses, and carrying an overcoat over his arm; Mr. Isaacson was in the restaurant kitchen facing the coffee shop; he could see through an open window that one of the men sat at the counter on the stool closest to the register, and the other patron first went to his right and then came back again. He asked the waitress which way the men's room was and she directed him in the other direction. He threw his coat over the stool next to the first man; the two had coffee; Mr. Isaacson identified the taller of the two men as being the defendant in the courtroom. He said then the alarm system buzzer sounded, and he moved from the kitchen to the front door of the restaurant; it took him about 20 seconds to do so. The telephone booths are located immediately to the left of the entrance to the restaurant and are part of the building; the booths have three walls and a finished redwood door with some glass in it to permit one to look into the booth. Mr. Isaacson observed the two men who had been seated in the coffee shop walking in a northerly direction about 10 or 15 feet from him. They walked farther on and got into a car; the shorter man had nothing in his hands, and he got in on the driver's side; the defendant had a coat wrapped around one of his hands; he opened a car door and threw the topcoat inside of the car; the car was backed out and it left the lot going north on Railroad Avenue. Mr. Isaacson tried to get the license number; 350 were the numbers at the end of the license, and the letters that preceded them were either TUM or TVM--he could not recall at the time of the trial. He went immediately to a telephone and called the telephone company and the sheriff's office, and people came from each to the scene of the crime. About three weeks after this Mr. Henton of the telephone company and Mr. Person of the sheriff's office came to the restaurant and showed Mr. Isaacson a book with photographs in it; in that book Mr. Isaacson pointed out defendant Naughton. His memory was that the car was sort of darkish with a little metallic finish, but he said he could not be sure about the colors.

Jack Henton from the Pacific Telephone Company testified that he had been a security agent working for that organization for five years; that he reported to the 'Four Wheels Cafe' in the morning that the crime had occurred. He explained the coin box system for pay telephones; the upper housings of all have the same locks--the identical key will fit all the locks in all the telephone booths in all these upper housings--and there is a leveling hole in the mechanisms so that when the upper housing is removed one can look down through the hole to see if there is a coin receptacle in the lower housing. However, each lock in each lower housing in every telephone booth is different, and it takes a special key to open these lower housings; these keys are kept in San Francisco, and when the boxes are to be opened the keys are sent out on the route with the collector who also carries new receptacles. The coin boxes are collected, and the keys and the full receptacles are then sent back to San Francisco. So, the only time such keys are out is when the collector is working on the route. At the time of the incident, the telephone security agent did not have a key to the lower housing. However, when he looked through the leveling hole, he could see that there was no coin receptacle in one of the telephones--the one in connection with which the burglary had been effected.

Phillip McCoulloch testified that he lived in Visalia and was a coin collection supervisor for the Pacific Telephone and Telegraph Company; his district comprised Bakersfield, Tulare and Fresno; in the afternoon of January 17, 1967, in Bakersfield, he was going by the 'Ban Ducci Restaurant' when he saw two men acting in an unusual manner at one of the restaurant pay telephone booths. What attracted his attention was that there was a piece of white paper on the right glass panel of the booth; the door was open. McCoulloch drove his car into the lot, parked it in front of the booth and watched the two men. One he thought was about 45 years old and five feet, six inches tall, with receding hair; he said he thought he might be Italian. He was inside the booth. The one on the outside of the booth was about five feet, ten inches tall and about 35 years old; he had on a black raincoat, white shirt with no tie, black horn-rimmed glasses; his hair was receding. The man outside was standing in the doorway of the booth blocking McCoulloch's view. McCoulloch sat there as if he were waiting to use the telephone, and the man standing outside acted very nervously and kept looking at him. McCoulloch was driving a rented car--not a regular telephone company automobile with an emblem painted on it. Then, the two men left the booth and walked around the side of the restaurant to the back parking lot. McCoulloch went over to the telephone and checked to see if there was a receptacle in the lower housing. He used a leveling tool; it is a piece of thin wire that is put in the lower part of the instrument. 'There is a drain hole in the bottom of the instrument, and I just put the leveling tool in the hole and I could hear that the receptacle was still there.' Then, he got back in his car and drove it around the other side of the restaurant to the back parking lot. There he saw the two men in a car starting to drive off; the shorter man was operating the car; it was a tan Oldsmobile, about a 1961 model, and the license number was TVM 350. They left the parking lot. McCoulloch went back to the telephone and called the office of the company's special agent in Fresno and reported what had happened to him. Soon after that...