People v. Martin

MARKS, J.

This is an appeal from a judgment pronounced upon defendant after his conviction of petit theft, with two prior convictions of felonies which he admitted, and from the order denying his motion for new trial.

Defendant was a prospector engaged in mining tailings near the San Joaquin River at Friant in Fresno County, California. L. H. Kahrt was postmaster and conducted a store in Friant at which defendant traded. Kahrt bought gold from miners.

On the evening of May 2, 1936, Kahrt had about $160 in gold in two bottles in a show case in his store. .The gold was last seen by Mrs. Kahrt at about four o’clock and by Mr. Kahrt at about five o’clock on the afternoon of May 2d. Early next morning it was gone. On May 2d defendant spent about thirty minutes in the store purchasing groceries immediately after six o’clock and was alone there for a few minutes. It is probable that he was the only customer in the store after four o’clock. The store was closed and the doors and windows fastened shortly before eight o’clock. They were in the same condition when the store was opened next morning and the theft was discovered.

About one-half ounce of gold amalgam in one piece had been in one of the two bottles. On May 9th defendant sold a little less than one-half ounce of gold amalgam to a dealer in Friant. When sold the amalgam had the appearance of being the fractions of a larger piece that had been pounded and broken up. Shortly before his arrest he shipped gold, probably in excess of five ounces, from Fresno to the United States Mint in San Francisco. Prior to his making this shipment he had offered for sale in excess of six ounces of gold in Mariposa. He told one witness there that he had obtained the gold in a mining district about seventeen miles from Mariposa, and another that he had mined it along the Kings River. He explained to another miner in Friant his possession of an unusual quantity of gold by saying that he had followed a third miner one night and observed him

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dig a hole and bury something; that he uncovered the hole and found about $150 in gold. These statements were all made after the theft and before his arrest.

At the time of his arrest defendant gave another miner the receipt for the gold shipment from Fresno. After his arrest he told the arresting officer that he had never shipped any gold from Fresno.