People v. Perry, Cr. 5081

• Decision Date: 04 February 1954
• Docket Number: Cr. 5081
• Citation: 266 P.2d 515,123 Cal.App.2d 74
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. PERRY et al.

Page 515

266 P.2d 515

123 Cal.App.2d 74

PEOPLE v. PERRY et al.

Cr. 5081.

District Court of Appeal, Second District, Division 2, California.

Feb. 4, 1954.

Erb, French & Picone, Samuel B. Picone, Beverly Hills, for appellant.

Edmund G. Brown, Atty. Gen., Alan R. Woodard, Deputy Atty. Gen., for respondent.

FOX, Justice.

Appellant was convicted of burglary and conspiracy to commit burglary. He appeals from the ensuing judgments and orders denying his motions for a new trial.

The indictments in this case grow out of the plans of appellant and his confederates, Davidson and Perry, to burglarize Kay's Drive-In, on Laurel Canyon Boulevard, in North Hollywood, and the subsequent unlawful entry of these premises and the asportation of the safe containing some $8,000.

In August and September, 1952, Mr. Chenes owned five restaurants, one of which was Kay's Drive-In, where his main office was located. Late at night on Labor Day, Monday, September 1st, Mr. Chenes made up a bank deposit consisting of the receipts of the previous four days from all his restaurants. The bills were stacked according to the various denominations. There was one stack of 22 one-dollar bills which was to be kept for purposes of making change. Mr. Chenes marked the top bill on this latter stack with the number '22.' He identified this bill and figures thereon at the trial because of the particular angle of the notation upon the face of the bill. After preparing these receipts for deposit Chenes put them in the safe in his office and locked it. He closed the office and left a few minutes after midnight on the morning of September 2d. He returned about 7:00 a. m. and discovered his place had been entered and the safe, which weighed between 300 and 400 pounds, was gone.

The charges against defendant Perry were dismissed and he was called as a witness for the People. He had known defendant Davidson for approximately a year. During the early part of August these two men met in a restaurant near the latter's apartment and discussed their mutual need of money and 'the best and easiest place to get it.' Perry, who had worked for Chenes for a short time, mentioned that Kay's Drive-In 'would probably be a good place to get some money' because a substantial sum, he understood, was ordinarily kept in the safe there. Davidson suggested they go out and look the situation over. About the middle of August, Perry and Davidson inspected this eating establishment and the location of the office. Davidson said 'it would be a cinch if the safe wasn't too large.' Neither of them saw the safe on this occasion and Perry had not previously seen it. Shortly thereafter Perry was introduced to appellant by Davidson in the latter's apartment. The three of them discussed the deal. Davidson asked appellant and Perry to go out to the drive-in and 'to try and get inside and see the safe, to see how large it was and how much it would weigh.' On about August 25th, Perry accompanied appellant to the drive-in in a car driven by the latter. After they had parked about a block away appellant entered the office assertedly in quest of a cook's job. He returned in about 15 minutes and said the safe would weigh between 300 and 400 pounds, that the building could be easily entered with a small crowbar, and that it was all cheap construction. The original plan had been to take the safe on the week-end prior to the Labor Day week-end but Davidson had suggested they wait until the later period because the receipts would probably be greater. In the meantime, Perry expressed his disapproval of the whole idea and did not thereafter see either of the other men. Perry also disclosed that his girl friend, Marie, was Chenes's sister-in-law, that she worked for Chenes in his Burbank restaurant, and had been present when he discussed with Davidson the taking of the safe. She testified to such conversation, and that appellant's name was mentioned in connection with the job; also, that she told them to 'lay off.' She had been visited twice by Davidson and appellant at the place where she worked. When Davidson told her appellant had gone down to look at Kay's Drive-In she told him to get out and stay out. She further testified that shortly after midnight on September 2nd she received a telephone call from Davidson inquiring whether Perry was there. Upon receiving a negative reply Davidson said: 'Well, I guess he is out getting drunk, we will have to count him out.' He also said Miller was in the car waiting for him.

With respect to appellant's visit to the office of the drive-in, ostensibly to apply for a cook's job, Mr. Chenes testified that he interviewed Miller in the office several days before the theft of the safe. Chenes told appellant there was a job open and that he should talk to the chef since he was the one who handled the kitchen jobs and hours. Appellant, however, did not report to the chef, nor did he go to the kitchen.

Davidson was arrested on September 5th. A search of his apartment revealed several crowbars in a cupboard. There was a white substance that looked like plaster on one of them. An expert's examination of the white substance on this crowbar, which Davidson said belonged to him, disclosed that the crowbar contained layers of white plaster with a cream colored paint on it which was identical in appearance, and number and size of layers, with that on the area next to the door jam where the culprits had broken into the drive-in.

Upon appellant's arrest he had $8 in currency in his wallet consisting of a $5 bill and three $1 bills. One of these $1 bills had the figure '22' written on it. These were the figures Mr. Chenes identified as having been placed by him on the top bill of a stack of 22 $1 bills the night before the burglary. By way of explanation of his possession of this particular bill, appellant told a police officer that when he went to his apartment the night before, his landlady had told him that detectives had been looking for him; that since he had not had dinner, he went out and ate and paid for his dinner with a ten dollar bill, receiving the $8 in change. He did not remember or had not noticed the name of the place where he ate, although it was just a short distance from his apartment. When asked if he could find the place where he had his dinner, appellant was rather undecided whether he could or not.

Appellant sought to establish an alibi. He testified that he spent Labor Day night at the home of Mr. and Mrs. James L. Blair, in Long Beach. The Blairs and Dale Fox supported his alibi. During the investigation, however, appellant did not mention the names of these people to the officers. Appellant then claimed he had been at his apartment that night.

Appellant testified that he first met Perry around the early part of August; that Perry later told him he might be able to get a job as a cook at Kay's Drive-In; that they went out to the drive-in and he inquired of a lady in the office about a job; he was advised by her that Mr. Chenes did the hiring but that he was not in; that she, however, called him on the 'phone and then advised appellant that Mr. Chenes had a job for him and that he should go out to the central store for an...