People v. Dillon

WILLIS, J.,

pro

tem.

In an indictment, appellant was charged with three counts of grand theft, the first charging the felonious taking on October 27, 1933, of 100 dozen men’s work shirts of the value of $450, in lawful money of the United States, the property of American National Red Cross, a corporation; the second similarly charging the taking on August 24, 1933, of 3,000 yards of cotton gingham fabric, of the value of $225, the property of the same corporation, and the third a similar taking on October 17, 1933, of 30 dozen men’s cotton trousers of the value of $225 in lawful money of the United States, the property of the same corporation. At the trial before the court and jury he was convicted on the first two counts and acquitted on the third. A motion for new trial was made and denied and from the judgment entered and the order denying that motion, appellant has taken this appeal, assigning five points as error, namely: (1) That there was no proof that any of the property was stolen. (2) That there was no proof that the merchandise taken was of a value in excess of $200. (3) That it cannot be ascertained from the records if all the merchandise was taken at one time or at various times, and, if taken at various times, how much was taken at each time. (4) That the court erred in refusing to instruct the jury with reference to the testimony of an accomplice. (5) That the district attorney was guilty of misconduct in his argument to the jury.

The record of proceedings at the trial of this ease comprises slightly over 500 pages, a careful reading and study of which reveals that defendant was capably represented and that the lower court was extraordinarily patient and lenient in allowing him wide latitude of cross-examination and defense. A summary of the facts which the evidence tended to establish appears necessary as a basis on which to predicate our decision herein on the several points raised.

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Since April, 1932, appellant had been and at the dates of the offenses charged herein was employed as manager of the warehouse of the Los Angeles Chapter of American National Red Cross, located at Fourth and Anderson Streets, in Los Angeles, California, and wherein was received and kept for distribution to agencies of charity throughout the county large quantities of merchandise which was in the charge and care of appellant, and which he distributed out on requisitions presented to him by those on the list of agencies. Some six blocks distant from the warehouse one Harry Horowitz operated a department store. To him the appellant, giving the name of Broderick, sold, about August 24, 1933, 3,000 yards of cotton gingham fabric, and about October 27, 1933, 100 dozen men’s work shirts, and about October 17, 1933, 30 dozen men’s cotton trousers. Prior to these dates and beginning in July, 1933, appellant had made many similar sales of merchandise to Horowitz, and over the period up to November when appellant was arrested, such sales had aggregated some $1500, of which Horowitz still owed about $650. Horowitz did not know or suspect that “Broderick” was Dillon, the man who was in charge of the warehouse, but was informed by the latter that the goods he was selling had been procured from steamship companies as unclaimed or undelivered shipments, a well-known source of such merchandise to Horowitz. Shortage of stock being discovered or suspected, an investigation and audit followed, culminating in the indictment herein.