People v. Wallace

PETERS, P. J.

Barry Thomas and Henry Clay Wallace were found guilty of attempted grand theft. From the judgment of conviction and from the order denying the motions for a new trial they prosecute this appeal.

The two defendants were indicted on two counts. The first count charged them with conspiracy to commit grand theft. By this count the defendants were charged with having conspired, between April 22, 1944, and October 30, 1944, to take unlawfully the property of Evelyn Fong and the National Casualty Company of the value of $20,000. Nineteen overt acts are set forth in the indictment. The second count charged both men with an attempt to commit grand theft, in that from April 22, 1944, to October 27, 1944, they attempted to take unlawfully the property of Evelyn Fong and the National Casualty Company of the value of $20,000. The jury acquitted both defendants of the conspiracy charge, but found both guilty of attempted grand theft.

The defendants have filed joint briefs. Both are Negroes. The defendant Wallace, a doctor, bases his appeal on two grounds: (1) Lack of jurisdiction of the Alameda County Superior Court over this defendant, and (2) that there was no crime committed as charged in count two of the indictment. The defendant Thomas bases his appeal solely upon the second ground mentioned above.

The record amply supports the trial court’s determination that defendants are guilty of attempted grand theft. It dis

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closes a clever and cunning attempt, bunglingly executed, to defraud Evelyn Fong and her insurance carrier of damages for a spurious automobile accident.

The scene opens in the early morning hours of April 22, 1944. At approximately 1:50 a. m. of that day the Police Department of Oakland received a telephone call notifying them that a man who had been injured in.an automobile accident was in front of the telephone building on Franklin Street between 15th and 16th Streets. Two police officers connected with the accident detail responded, and there found Thomas. He told the police officers that he had been struck about an hour before by a light-colored convertible sedan, with its top down, at 13th and Franklin Streets while he was in the west crosswalk proceeding in a northerly direction. Thomas produced and delivered to one of the officers a piece of paper on which was written in pencil the license number “39B582,” and he told the officers that it had been written by a truck driver for a paper company” and delivered to him, and that this truck driver told Thomas that he saw the accident, that he had taken the license number of the offending car, and that the number on the paper was the number of that car. At the trial a handwriting expert testified that after comparing the letters and numbers on this paper with known exemplars of Thomas’ handwriting he was of the opinion that the license number had been written by Thomas. There was no contrary expert testimony. The exhibits attached to respondent’s brief demonstrate, almost to a certainty, the correctness of the opinion of the expert.