People v. Phipps

• Decision Date: 21 April 1961
• Docket Number: Cr. 1283
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Cecil Chester PHIPPS and Verna Phipps, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 681

12 Cal.Rptr. 681

191 Cal.App.2d 448

PEOPLE of the State of California, Plaintiff and Respondent, v. Cecil Chester PHIPPS and Verna Phipps, Defendants and Appellants.

Cr. 1283.

District Court of Appeal, Fourth District, California.

April 21, 1961.

J. M. Lopes, Visalia, for appellants.

Stanley Mosk, Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for respondent.

GRIFFIN, Presiding Justice.

The indictment herein contained one count charging the defendants, Cecil Phipps and his wife Verna Phipps, with grand theft, in violation of Penal Code, section 487, in that they unlawfully took checks having a value of $3,054 from Tulare County between March 1, 1958 and January 31, 1959. After being found guilty by a jury, imposition of sentence was suspended for three years and the defendants were granted conditional probation. They have appealed from the judgment, from the orders denying their motions for a new trial and from the alleged order denying their motion to set aside the indictments. There is no record of this latter motion being made or denied.

On March 20, 1956, Verna Phipps applied for welfare payments for herself and her nine minor children. She disclosed that her husband was employed and living in the family home. A county welfare department worker advised her that these facts precluded granting welfare aid. However, Mr. Phipps was interviewed. He said his income was about $200 per month and that he had not abandoned his family and had no intention of deserting them. The welfare worker determined that the family was not eligible for welfare aid and the application was denied. Subsequently, on October 2, 1956, Mrs. Phipps reapplied for welfare aid, stating that Mr. Phipps had been living out of the home since June 1956 and that his address was unknown. The welfare department authorized payment of aid on the basis that the children were deprived of parental support by reason of the absence of their father. On December 31, 1956, aid was discontinued because the welfare department found that Mr. Phipps was not absent from the family home.

Again, on June 13, 1957, Mrs. Phipps applied for aid from the welfare department, stating that she had filed for divorce that day and that she understood she could apply for aid under these circumstances. She filled out an application form requesting aid, in which she stated that Mr. Phipps was living outside the family home. Immediately above her signature on the form the following words appear:

'I will notify the county welfare department of any real or personal property transactions, change in income or other financial conditions, marriage of any of the above children, or remarriage of either parent of these children, of any change in address, or if a parent is absent from the home, any information regarding his address or whereabouts or his return to the home. I solemnly swear or affirm that the statements made herein are true and correct to the best of my knowledge and belief.'

This provision was read to Mrs. Phipps before she signed the application. The previous application forms signed by Mrs. Phipps contained the same promise.

On the basis of this application, and under the belief that Mr. Phipps was absent from the home and that the Phipps children were thereby deprived of parental support, welfare payments were authorized and paid to Mrs. Phipps commencing on August 1, 1957, and continuing until January 31, 1959.

Considerable evidence was presented which indicated that the marriage of Mr. and Mrs. Phipps was not actually disrupted, that they were not living apart from each other, and that they had obtained welfare checks by falsely pretending that Mr. Phipps was absent from the home.

Alexander Wilson testified that Mrs. Phipps rented a home from his from the spring or 1957 until the end of March 1958. Mr. Wilson was introduced to Mr. Phipps during March 1958 at the Phipps home. During this month, the witness saw Mr. Phipps at the home nearly every day for a two-week period. Previously, he had occasionally seen Mr. Phipps around the house on weekends. A service station operator testified that during 1958 the Phippses occasionally made purchases at his service station. Sometimes they were together and sometimes they came in alone. Both paid the bills. The proprietor of a grocery store located near the Phipps home testified that they made purchases in his store almost daily from June 1958 until January 1959. Sometimes they came to his store together and sometimes separately. Mrs. Phipps opened a charge account at the store and Mr. Phipps sometimes charged items to this account. Mrs. Phipps usually made the payments on this account, but sometimes Mr. Phipps indicated that certain items were to be charged separately to him and he paid for these items. Occasionally they paid cash for purchases. Both Mr. and Mrs. Phipps drove the same automobile.

James Durham, Sr., whose son married a daughter of the Phippses, was acquainted with Mr. and Mrs. Phipps. He saw the Phippses together at his son's home on several occasions between March 1958 and January 1959. Mr. Durham went north to work on the fruit harvest between April and September of 1958. He saw the Phippses at Yuba City where they stayed three or four days, sleeping together on a bed in the back of a Chevrolet panel truck.

James Durham, Jr., was married to one of the Phippses' daughters. The Phippses were together in his home for Christmas dinner in 1957. One morning during the spring of 1958 he went fishing with Mr. Phipps and during the trip he began conversing with Mr. Phipps about his going fishing all the time and not working. 'Why should I work?' responded Mr. Phipps, adding the statement, 'The county has to feed half of Tulare, they might as well feed my family also.' During March and April of 1958, James Durham, Jr. visited at the new home of the Phipps family near Tulare several times each week. During the days Mr. Phipps was usually either working in the garden or fishing. In the evenings he would sit at home with the rest of the Phipps family watching television. The witness saw Mr. and Mrs. Phipps together at Yuba City early in May. They stayed two or three days. In August of 1958 he again saw them together near Shasta Lake.

A welfare department employee interviewed Mrs. Phipps at her home in May 1958 an observed Mr. Phipps in the back yard working in the garden. Mrs. Phipps stated that Mr. Phipps did not live in the home but that he came over twice a week to work in the garden. There was testimony that Mr. Phipps occasionally transported his children to school and that he took one of them to a dentist's office to keep an appointment in January 1959.

Between 2:00 and 3:00 a. m. on January 28, 1959, investigators went to the Phipps home to investigate the truth of reports that Mr. Phipps was frequenting the home of Mrs. Phipps. The call was made at that unusual hour to preclude the anticipated explanation that Mr. Phipps was at the home for the purpose of visiting his children. As the investigators approached the home they encountered Mr. Phipps as he came out the back door. Mrs. Phipps and several of the children were inside the home. Both Mr. and Mrs. Phipps were fully dressed. She stated that Mr. Phipps had spent...