People v. Deininger

WARD, J.

This appeal taken by notice in open court by defendants Deininger and Turner, charged jointly with one Zimmerman, is from a judgment of conviction of grand theft and from orders denying motions of the two appellants for new trials.

The facts of the case are as follows: The complaining witness E. L. Mathewson conducted a used ear business in the city of Oakland. On March 30, 1939, defendant and appellant Deininger, codefendant Zimmerman, and a seventeen-year-old boy, one Stratton, started in Zimmerman’s ear for Mathewson’s place of business. About two blocks from the place, the Stratton boy was asked to get out and await the return of the others, which he did. Upon their arrival at Mathewson’s place, Zimmerman parked his car along the curb in front of the premises, directly behind a Ford V-8 phaeton which was being displayed for sale. Deininger got out of the Zimmerman car and, entering the displayed Ford, started its motor, upon which Mathewson came over to the car and he and Deininger, representing himself as a prospective purchaser, talked about the car and the terms of purchase. A few minutes later a man named Turner stepped from across the street and - asked Deininger whether he was thinking of

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buying a car. At Turner’s approach Deininger got out of the car but continued his conversation with Mathewson regarding its purchase. Turner in the meantime entered the car, saying he would like to take a ride in it, and started the motor. Mathewson said “That is fine, but I will have to go along.” Turner alternately raced and idled the motor and seemed generally to be much interested in the car. Deininger in the meantime started to reenter the car, whereupon Mathewson told Deininger that if he was the man who was going to purchase the ear, he should “come over and arrange with us”. At this time Mathewson’s attention was diverted by the arrival of another car, and Deininger and Turner drove off. There is evidence that they called to Zimmerman, who had remained in his car behind the Ford, to wait a minute as they would be back. Zimmerman did wait about that length of time and then drove rapidly away. Turner and Deininger picked up Stratton and they drove to Zimmerman’s house, where Zimmerman was already awaiting them. With tools supplied by Zimmerman, they removed the top, the fan, the air strainer, carburetor and radiator shield. Later Turner took the parties to their homes in the car, and after his own dinner, picked up Deininger and Stratton again. Finding themselves out of gasoline, Deininger, representing to a gasoline service station attendant that he was on his way to his sick mother in Martinez, obtained the necessary gasoline after signing a credit slip, showing his driver’s license, from which the attendant took his name and address, and leaving the side curtains from the complainant Mathewson’s car as security, promising to return and pay for the gasoline the next day, which promise, however, he did not keep. The appellants and Stratton then drove to Martinez, returning about 10:45 P. M. to the home of Zimmerman, where they threw the top which they had earlier removed, into the car, replacing none of the other parts, however, and abandoned the car at Thirty-fourth Street and Broadway, two blocks from Mathewson’s place of business. Stratton later returned with an acquaintance of his and, throwing the car top on to the lawn of the house in front of which the car had been left, drove off, later again abandoning the car.