People v. McCarthy

GRAIL, P. J.

This is an appeal from a conviction of grand theft from the person and from the order denying a motion for a new trial. Viewing the evidence most favorable to the People, which it is our duty to do, there had been some complaints about police officers “rolling drunks” in the district where the crime took place, and at about 3 o’clock a. m., W. C. Tilden drove out and parked his car at the side of the road, with the right front wheel over the curb. He had fifteen dollars in money, the numbers of which had been expressly taken, which consisted of two five-dollar bills and five one-dollar bills. Tilden then poured some whiskey on the front of his shirt, washed "his mouth out with it and spilled a little on the front of the car. He did not swallow any of the liquor. The money, the numbers of which had been previously noted, was in his right front pants’ pocket.

Within five minutes the defendant, a police officer, and his associate came along in a police traffic ear. The two officers then came over to Tilden, flashed their lights on him and asked his name. Tilden simulated drunkenness. He mumbled around. One of the officers told the other that he had better drive Tilden off the curb, that it was kind of a bad place, and this was done. One of the officers went to the right side of the car and one to the left. Both of them asked him questions for identification. At this time they began searching him, and the officer on the right searched all his pockets, coat and. pants. When the officer put his hand into the right front pocket of Tilden’s pants he said to the

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other officer, “Well, he has got money anyway,” and took it, and then immediately thereafter they closed the doors and left without speaking another word. Tilden did not give anyone permission to take the money, and the officers took the money without his consent. Some time later in the same night the defendant and his partner were searched. The defendant had seven dollars of the identical money in his wallet, and his partner had eight dollars.

The defendant in his appeal brings forward his own testimony. He testified that he did not hear any conversation between Tilden and his partner Byan. He denied hearing Byan say, “Well, he has got money anyway.” He denies that he saw any money at all while he was at Tilden’s car, but that after they had gone several blocks from the car Byan handed him the money and said that he had found it on the curb. “And that is all that was said about it. He gave me some money and I stuck it here, in my shirt pocket; and, when 1 got home, I took it out of my shirt pocket and put it in my wallet.” Belying upon this evidence, the defendant contends that a conviction cannot be had without any evidence or proof of the intent to commit the offense, and contends that if a defendant had no knowledge of a theft until after its commission, even though he later received the stolen goods into his possession, he cannot be guilty of theft.