People v. Cole

PEEK, J.

Defendant appeals from a judgment of conviction of grand theft, and from the order denying his motion for a new trial.

By an information filed by the district attorney of Sacramento County defendant was charged in Count I with burglary, in Count II with grand theft and additionally was charged with two prior felony convictions. He pleaded not guilty to the substantive offenses and admitted the prior convictions. At the conclusion of the trial the jury returned verdicts of guilty on each count. Probation was denied, as was his motion for a new trial. The motion of the district attorney to dismiss Count I was granted, and upon its own motion the court dismissed the two prior convictions.

Summarizing the evidence in the light most favorable to the respondent, it appears that a tape recorder was taken from a store operated by Herman Paig without his consent. His testimony was that as he walked from the rear to the front of his store he noticed a colored man he could not identify just outside the front door. This person was carrying a heavy object which he placed in a ear parked with its motor running at the curb. He described the car as a “beat up . . . about a 1940” sedan. In the car was another colored man he could not identify. Immediately thereafter he discovered that the tape recorder which had been on a table a few feet from the door was missing. Its retail price was $254.95 and the wholesale price $175. Later that morning the defendant and his companion were arrested by the police. The car in which they were riding was a dark bluish-green 1939 Chrysler sedan. When first questioned by the officers defendant denied the theft of the recorder. That same afternoon the officers recovered the tape recorder in a storage room in the rear of Jim Doyle’s Barber Shop in Sacramento. The proprietor, when taken to the police station, identified the defendant as the person from whom he had purchased the recorder earlier that day. At this point the defendant stated to the officers, “Well,

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I am dead. I took it.” The defendant then gave a statement to the officers in which he admitted that he and his companion had been driving in the Oak Park area of Sacramento that morning looking for something to steal; that he stole the particular recorder and took it to Doyle who purchased it for $45. The defendant’s companion related substantially the same story, and when the defendant was confronted with the statement it was not denied.