People v. Withers

DORAN, J.

Defendant was adjudged guilty by a jury of three counts of grand theft. A prior conviction of a felony (issuing worthless cheeks) was admitted. The appeal is from the judgment.

[59]

Six specifications of error are urged which, in substance, include alleged prejudicial cross-examination of the defendant, failure of the trial court to give cautionary instructions relating to circumstantial evidence and the admissions of defendant, insufficient evidence, and an alleged abuse of discretion on the part of the court in ordering the judgments to run consecutively.

The evidence reveals that the defendant had been a prisoner in San Quentin. While there as a prisoner, he became familiar with the duties and work of the Board of Prison Terms and Paroles. Upon his release, he worked for the Volunteers of America. While associated with this organization, he wrote a letter to the witness Boy Growl, whose son was in San Quentin and whom the defendant knew in San Quentin. In substance, he represented in said letter and in later conversations with this witness that he was in a position to secure the release of Growl’s son. Upon these representations he obtained from Mr. Growl a total of $1,000 in several different payments. Defendant did not reveal to Mr. Growl during the negotiations that he had been a prisoner in San Quentin or that he was on parole. Mr. Growl asked the defendant at one time who was getting the money, to which the defendant replied, “If you trust me, you know better than to ask any question. ’ ’ The letter above referred to was dated April 19, 1944. When the defendant failed to effect the release of Mr. Growl’s son, he gave Mr. Growl a check dated June 8, 1944, for $1,000, which was worthless.

With regard to appellant’s contention that the court abused its discretion by ordering the sentences to run consecutively, it is argued that “excessive, cruel and inhuman punishment” was thereby inflicted upon appellant and that the trial judge, at the time of pronouncing sentence, was “somewhat ruled by his strong personal feelings.” The trial judge’s remarks, which are the basis of this contention, were as follows:

“I feel about this case as I very seldom feel in any case. I don’t ordinarily take a personal feeling about any case, but I do in this case. I think Mr. Withers has done—besides stealing money in this case he has done three other mistakes. You have imposed on the natural love and sympathy and credulity of a hard working father, who put out his hard earned money in the hope of getting his son out of prison, and you have ruthlessly, without any compunction, dragged the name