People v. Walther

• Decision Date: 19 June 1968
• Docket Number: Cr. 438
• Citation: 263 Cal.App.2d 310,69 Cal.Rptr. 434
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. La Mont WALTHER, Defendant and Appellant.

Page 434

69 Cal.Rptr. 434

263 Cal.App.2d 310

The PEOPLE of the State of California, Plaintiff and Respondent, v. La Mont WALTHER, Defendant and Appellant Cr. 438.

Court of Appeal, Fifth District, California.

June 19, 1968.

Hearing Denied Aug. 14, 1968.

John M. Beede, Woodland, for defendant-appellant.

Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse, and Philip R. Birney, Dep. Attys. Gen., Sacramento, for plaintiff-respondent.

CONLEY, Presiding Justice.

The defendant, La Mont Walther, was convicted by a jury of grand theft in that he stole personal property of a value in excess of $200 from John Andrew Erickson; the record indicates that, through elaborate trickery, the defendant gained $180,000 by this crime. The evidence, incidentally, also shows that three legitimate businessmen of southern California, who were accustomed to handling large sums of money, were victimized in part through their unbelievable credulity and in part through their willingness to engage for profit in undercover negotiations with a person later proven to be a downright crook, who had served at least one prior term in the state penitentiary.

Originally the grand jury of Yolo County indicated La Mont Walther for violation of section 484 of the Penal Code (grand theft) in that on July 31, 1964, he stole personal property of a value in excess of $200 from John Andrew Erickson. The indictment was later amended to add a prior conviction of robbery of the first degree in the County of Sacramento on or about the 23rd day of November, 1923, for which he served a term in the California state prison. The defendant admitted the prior conviction but denied his guilt on the current charge.

The record shows that John Andrew Erickson of Lakewood, California, manager of a water company and an investor whose net-worth was approximately $450,000, wanted to buy raw gold. He met a person named Schneider, supposedly a Utah attorney and an agent for owners of placer gold. Erickson testified that he checked on Mr. Schneider's credentials and was persuaded by people purporting to be United States Government Secret Service Employees that Schneider was a legitimate attorney and had carried on business dealings relative to mining in Washington. Erickson induced a friend named Hodges to join him in the venture, and at a later time also enlisted another businessman, named McAllister, in the joint venture.

Erickson had entered into a contract with a New Jersey firm to purchase placer gold at a fixed figure when he should acquire it. Erickson's actual deal for purchasing the placer gold at frequent intervals was to be secret. The purported real sellers of the gold never allegedly permitted their names to be used. It was understood that Erickson and Hodges would go from Southern California to San Francisco, would there rent two automobiles, take with them an assayer who would test the tendered placer gold and the sale would then take place secretly by the purchasers exchanging cars with the seller. During the first part of July 1964, Erickson and Hodges took with them one Dunkel, an assayer, from Los Angeles and flew to San Francisco carrying $120,000 in cash. They were met at the airport by Schneider, there rented two cars and went to Vallejo, where Schneider introduced them to a man called Mack, supposedly an employee of the gold owners. He was to check the money and exchange the placer gold for the cash. Mack is the appellant. Erickson and Dunkel drove to a telephone booth near Vallejo and waited there for 2 1/2 hours, finally received a telephone call to the effect that the sellers of the gold could not sell or deliver such a small amount. The entrepreneurs then flew back to Los Angeles.

On July 14, 1964, this same weird procedure was again followed with two rented cars journeying helter-skelter in the bay region near Vallejo and the use of public telephone booths; on this second occasion, the businessmen had been forced to employ an assayer other than the one originally taken with them, and the 'sellers' of the gold told the purported buyers that they would not make the contact and deliver the metal, because they did not recognize the new assayer and feared a trap and that more than $180,000 would be required to swing the deal.

Again, Erickson and his associates flew back to Los Angeles. For a third time, these committed buyers flew north to the San Francisco airport, this time with $180,000 in cash and followed the same amazing pattern which they had adopted before, meeting Schneider at the airport, motoring to Vallejo in the two rented cars, with Erickson and Thomas, the assayer, later going by direction to a public telephone booth near a gas station in Walnut Creek where they waited for four hours. The assayer testified that he and Erickson sat all afternoon long in Walnut Creek at a gas station near a phone booth. Mr. Erickson stayed there two or three hours and the assayer four or five hours; Erickson left and went someplace else; the assayer was within a radius of 30 to 40 feet from the telephone booth all the time. Erickson returned to Hodges and McAllister in Vallejo where they were keeping watch over the $180,000. Schneider and the appellant made several telephone calls from the public phone booth and they finally said that the shipment of gold had been jijacked. But Schneider urged the gold buyers to stay overnight, saying that he hoped that something could be worked out. The purchasers did remain nearby at a Walnut Creek motel, and the next morning Schneider told them they must all go to the Nut Tree Inn to meet the defendant; they were informed that the defendant had lined up a sale of 10,000 ounces of placer gold. Abandoning the original plans outlined above, Erickson and the defendant by agreement went together in one car with the money to exchange it for the gold. Erickson supposedly was quickly instructed on how to assay the gold; taking a loaded pistol with them, the defendant and he went off from the Nut Tree Inn toward Zamora. During the trip, defendant told Erickson to take the wrappers off the money; defendant drove the car onto a cut-off road between Zamora and Woodland. He drove past an access way to a ranch several times saying that he was looking for a signal. On the third pass along the road, defendant said that he had seen a signal and stopped the car, claiming that an alleged new pile of rocks constituted the signal. Erickson and the appellant continued along the lonely road to a gate on a semi-used roadway and Erickson at the request of Walther got out to open the gate; the latter then drove rapidly away with the $180,000 calling back to Erickson to go on, in that he was just testing him; Erickson managed to get to a farmhouse and finally to notify the sheriff of Yolo County at Woodland by telephone.

The record shows that the defendant got to Woodland well before Erickson where he purchased an old Buick automobile for $250 in cash, paying with $20 bills. Then, he disappeared and was not seen for something over two years.

When Erickson got to Woodland, he reported fully to the sheriff's office; none of the money was ever recovered and no gold was ever delivered to Erickson or any of his people.

Appellant presents five arguments on appeal, all having to do with the admission of evidence; he alleges

1) That the court committed prejudicial error by allowing hearsay testimony including the opinion of a third person 2) That error was committed by allowing evidence of a prior attempted theft to show a common plan or scheme of criminal operation by appellant;

3) That it was erroneous not to permit the defense to question Erickson when the scene of the alleged crime was visited by the jury and it was also error for the court's there examining Erickson and to assume facts not in evidence;

4) That the verdict was not supported by sufficient evidence; and

5) That error existed when the court allowed Erickson and McCullen to present hearsay evidence relating to an alleged clearance of Schneider by the treasury department.

Throughout an examination of the record we keep in mind that the appellate court is not bound by the same rule that applies to the trier of fact in the court below. As is said in People v. Robillard, 55 Cal.2d 88, 93, 10 Cal.Rptr. 167, 169, 358 P.2d 295, 297, 93 A.L.R.2d 1086:

'It is the trier of fact, not the appellate court, that must be convinced of a defendant's guilt beyond a reasonable doubt.'

Our duty is thus expressed in the opinion in People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 780, where it is said that we must

"* * * assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.' If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.'

People v. Torres, 201 Cal.App.2d 290, 294, 20 Cal.Rptr. 315, points out that the elements necessary to prove grand theft are the taking of personal property (which in the case of grand theft must exceed $200 in value) from the owner, into the possession of the criminal without the consent of the owner or under a claim of right, the asportation of the subject matter, and by the specific intent to deprive the owner of his property wholly and permanently. This requisite intent may be shown circumstantially. (People v. Moore, 234 Cal.App.2d 29, 31, 44 Cal.Rptr. 184.)

Having resorted to complex trickery by finally inducing Erickson to get out of the automobile to open a gate, the defendant rapidly backed away from where Erickson was standing and escaped with the $180,000, which was in a container on the back seat of the hired automobile. There with all clarity was the asportation of the $110,000 belonging...