People v. Coon

THE COURT.

A rehearing was granted in this cause as to appellant Fred C. Zeismer in order that we might give further consideration to the claim that the evidence is insufficient to sustain the conviction and that the record failed to disclose proof showing the value of the property allegedly taken as charged in count 2 of the indictment. (36 Cal. App. (2d) 469 [97 Pac. (2d) 1006].)

In an indictment returned by the grand jury of Los Angeles County appellant and two others were charged jointly with the offense of grand theft in two counts. Following appropriate waiver of jury and submission of the cause to the court, appellant was found guilty of the offense of grand theft as charged in count 2 of the indictment and of the offense of petty theft, a lesser offense than that charged in count 1, but necessarily included therein. From the judgment and the order by which his motion for a new trial was denied appellant prosecutes this appeal. However, appellant failed to perfect his appeal from the order denying his motion for a new trial, and the matter comes to us upon appeal from the judgment alone.

Stating the evidence in the light most favorable to the prosecution, as we are required to do following a conviction, we find in the record testimony that defendant Carl C. Coon was a member of the Santa Monica fire department, where he had been employed for a continuous period of some nine years; that defendant Charles Powers was employed by the

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Santa Monica police department as a painter of pedestrian crossings, while appellant Zeismer was a police officer of the city of Santa Monica. On Wednesday, November 23, 1938, a brush fire was raging in the hills close to the Roosevelt Highway in the Malibu district north of Santa Monica, and during the afternoon of that day the fire spread across the highway and destroyed several cabins along the water front, including a cabin owned by one Prank Parmenter and another occupied by two young airplane hostesses, Thelma Weld and Kathleen Kay. On the day following the fire—Thanksgiving Day—certain personal belongings of Mr. Parmenter which the trial court found to be of a value less than $200 and certain personal belongings of the airplane hostesses which the court found to be of a value of more than $200, were found to be missing. Subsequently, on the Monday following the fire, these articles of personal property were returned to the Santa Monica police station, and the three hereinbefore named defendants were charged with the theft thereof.