People v. Rodgers

Opinion

FILES, P. J.

Defendant was charged with grand theft of a 1961 Chevrolet automobile, in violation of section 487, subdivision 3, of the Penal Code, and with driving or taking an automobile without the consent of the owner, with the intent to deprive the owner of title or possession, in violation of section 10851 of the Vehicle Code.

The defendant waived trial by jury and submitted the issue for decision on the transcript of the preliminary hearing and his own testimony given at the trial. He was acquitted of grand theft but found guilty of violation of section 10851 of the Vehicle Code. The defendant’s motion for a new trial on the ground of newly discovered evidence was denied. Proceedings were suspended and he was placed on probation for five years on condition that he serve 60 days in the county jail. He appeals from that order, which is a judgment for the purpose of appeal. The notice of appeal also refers to the order denying his motion for a new trial, which is not an appealable order.

The People’s case rests mainly on the testimony of William Silver. He testified that he resided at 351 South Fuller Avenue, Los Angeles; that a 1961 Chevrolet, license NYH 013, belonged to his wife; that, on May 20, 1967 (Saturday), he parked it in a garage on Colgate Avenue in Park

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LaBrea in Los Angeles (he was not sure of the street number); that the car was locked; and that when he returned on Monday morning it was gone.

Mrs. Silver did not testify, and her absence was not explained. There was no evidence of the whereabouts or activities of Mrs. Silver at any time, or what arrangements, if any, existed between the Silvers for the use of her car, or whether she or others had keys for the car, or whether the garage on Colgate Avenue belonged to him or her or both or neither. So far as the evidence shows, she could have given her consent to defendant’s use of the car.

Defendant was arrested while driving the car on November 17,1967.

The defendant, a truck driver, testified that the automobile in question had been loaned to him by a lady friend, a dancer, with whom he lived from February to September 1967, and that she had told him that she had been given the car to use by her friend, another dancer, while the latter was in the hospital.