People v. Gibson

MUSSELL, J.

Appellant was found guilty by a jury of “Theft and Unlawful Taking of a Vehicle as Charged in the Information.” He was sentenced to the state prison for the term prescribed by law and appeals from the judgment of conviction, claiming that the evidence was not sufficient to support the verdict and that the court erroneously admitted into evidence, the hearsay testimony of a police officer and of an assistant probation officer of the county of San Diego.

On October 7, 1956, at about 5 p. m., Corporal Jerry L. Faubian drove his 1953 Ford car into the Associated gas station at Torrey Pines or La Jolla Junction in San Diego. The corporal purchased gas for his car and then drove it around to the side of the men’s rest room. He then got out of the car, leaving the ignition key in it so that his friend, James Falls, who was with him and remained in the car, could listen to the radio. Faubian went into the rest room and when he came out, approximately five minutes later, his car was missing. After Faubian entered the rest room, Falls got out of the car, leaving the ignition key in it, and walked around the corner to the door of the rest room. From this position he could not see the ear and he remained there for about two minutes. When Faubian came out of the rest room, both men went around the corner to the place where the ear had been left and found that it had been stolen.

Leon B. Andrews, who was employed at the gas station, testified he came to work at approximately 10 a. m. on the morning

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of October 7, 1956, and saw the defendant and his companion, Emmit Miller, in the area; that defendant asked him to help him push his truck and that the truck was moved to the rear of the station about noon; that defendant and Miller were in and about the station until approximately 5 o’clock in the afternoon; that between 4 and 5 p. m. defendant and Miller walked in front of him between the service station and the rest rooms and that was the last time he saw them; that within 10 minutes thereafter Faubian and Falls reported to him that the Ford ear had been stolen.

At about 3:40 a. m. on October 8th, Police Officers Sawchik and Richter, of the San Diego Police Department, were checking a vehicle which was parked in an unusual location near Commercial and 30th Streets in San Diego, when a Ford approached from the north. The defendant and Miller were in the car and as they passed, the defendant turned around and looked at the officers. The officers then returned to their car and started in pursuit of the Ford. They overtook it within a short distance and while it was still moving, the right door opened and the defendant jumped out. He tripped and fell to the pavement, got up and ran to the south side of the street, against a fence and was there taken into custody by Officer Sawchik. A second or two after the defendant left the Ford, the left door opened and Miller got out, ran down an alley, leaving the car in motion. Officer Richter jumped from the police car and stopped the Ford by pulling the emergency brake. He then pursued Miller down the alley and took him into custody. After being arrested, both defendant and Miller at first denied that they had been in the Ford ear. Defendant stated he was crossing the street and the driver of the Ford had tried to run him down and he was getting out of the way of the car. Miller stated that he was running away from somebody who was trying to rob him and was threatening him with a knife. On October 8th, while Officer Mihelcich was handcuffing defendant and Miller together, taking them to court for arraignment, Miller stated he wanted to change his plea and wanted to plead guilty to car theft charges and said, “Well, I wanted to tell you we both took the car.” Defendant remained silent when this statement was made.