People v. Moon

BARNARD, P. J.

The defendant was accused of the crime of robbery in one count of an information and of the crime of grand theft in a second count. He was tried with a jury and at the close of the evidence for the prosecution the count charging robbery was dismissed on motion of the district attorney. The defendant then moved to dismiss the second count and also for an instructed verdict as to that count on the ground that the grand theft charge was included in the robbery charge, that the defendant had been once in jeopardy and that a dismissal of the first count automatically dismissed the second. This motion was denied, the defendant was convicted on the second count, and this appeal followed.

It appears from the evidence that the complaining witness, Claude Chilcoat, first met the appellant at a pool room in Santa Ana on January 21, 1935. They had a number of drinks of liquor together, at the expense of Chilcoat, after which the appellant asked Chilcoat to take him home. After going to a house, where they met three other men, the appellant and Chilcoat went out and bought some wine. Chilcoat paid for the wine and placed his pocketbook containing a $10

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bill and four $1 bills in his rear left pocket with a can of tobacco. Then they returned to the house where the other men were and a little later Chilcoat felt somebody take something from his pocket and immediately discovered that his pocketbook and tobacco were gone. After a short conversation he searched the appellant but did not find the pocketbook. As Chilcoat was leaving, one of the men handed him his tobacco can which he picked up' from a table. Before the appellant was searched one of the other men left the house. Shortly thereafter he was seen putting some bills in his pocket and covering something with loose dirt. A little later the witness who observed this returned and found Chilcoat’s pocketbook buried there. This was preserved and produced at the trial. After Chilcoat left the other men went to a liquor store and made a purchase paying for the same with a $10 bill, although the man who paid for it admitted that he had had only $1.40 on that day. Another witness testified that later that evening he went to the house where these men were and that one of the men who was present when the money was taken told him that the appellant had taken the money. Although this statement was made in the appellant’s presence, he made no reply.