People v. Solano

STURTEVANT, J.

In the trial court the defendant was charged, by two informations, with the commission of two offenses of grand theft. To each charge he entered a plea of not guilty. For the purpose of the trial the two actions, numbered respectively 32,371 and 32,375, were consolidated and the actions were tried by the court sitting with a jury. The jury returned verdicts finding the defendant guilty on both charges. In each action the defendant made a motion for a new trial. The motions were denied. The court sentenced the defendant to imprisonment in San Quentin Prison and provided that the second sentence should run concurrently with the first. The defendant appealed from the judgments and from the orders denying him a new trial, and has brought up typewritten transcripts.

In his brief the defendant states that the judgments should be reversed for four reasons, stating them, but he argues and presents only one, “that the verdict is contrary to law. ’ ’ That is, he claims the case presented by the prosecution involved a conspiracy, that there was no evidence the defendant conspired, and that the evidence showed the prosecuting witness was an accomplice but his testimony was not corroborated. We think these claims may not be sustained.

It was the theory of the prosecution that the defendant concocted a scheme by which through certain tricks and devices he did steal and take from the prosecuting witness a large sum of money. That in the offense alleged in action number 32,371 he did so steal from G. M. T. Carvajal money in the sum of $1500 and in the offense alleged in action number 32,375 he did steal from Frederieo Francisco money in the sum of $700. In action number 32,371 the offense was alleged to have been committed on December 28, 1940, and in action number 32,375 the offense was alleged to have been committed on March 20, 1939.

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The prosecution called as its first witness Frederico Francisco. He testified as follows. He met the defendant in March, 1939, at Kearny and Jackson Streets. The witness gave defendant his address. Later the defendant called at the room of the witness. He brought with him a deck of cards. The witness testified he did not know how to play cards. The defendant showed him how to play draw poker. The defendant said he had $25, that he would give it to the witness and they would go to the Hansa Hotel and play cards with a man who had lots of money and win some of it. The witness testified that in the same conversation the defendant showed him a number of signals he would give the witness. One finger would indicate one pair, two fingers two pair, and three fingers would indicate three of a kind. A closed fist would mean a full hand. The defendant said he would stand behind the other player and give signals to the witness. Later the witness and the defendant went to Hansa Hotel, engaged a room, each paid one-half, both registered and they went directly to the room. The defendant gave $25 to the witness. A little later a Chinaman by the name of Chinn came to the room. The defendant produced a deck of cards. Chinn produced another deck. On the table were some poker chips. The witness did not know who produced them. In a few moments after the witness and defendant arrived, playing commenced. At first the witness and defendant played. After Chinn arrived the defendant gave up his seat and Chinn and the witness played. The defendant took a position back of Chinn and from time to time gave the witness the signals. The latter won many games. When the witness had won about $500, Chinn said he had no more cash and that he would get a check for $2500 cashed and then return. He went out. The witness and defendant remained. Later Chinn returned, exhibited a roll of bills and the playing commenced again. In about half an hour when playing one game Chinn “called the witness” and said “ ... if you have got any money all right, if you don’t call this pot you lose all the money on the table.” As to that hand defendant gave no signal. But when Chinn made the above mentioned statement the defendant said to the witness, “If you have money in the bank, go get it and call the pot or else you will lose all.” He said, “Go ahead and call him.” The witness, accompanied by the de