People v. Post

THOMPSON, J.

The defendants were jointly tried and convicted of grand theft of money and travelers cheques, accomplished by means of a confidence game. Neither defendant was a witness at the trial. A motion for new trial was denied.

The appellants contend that the verdicts and judgment are not supported by the evidence for the asserted reason that there is an absence of proof of an intention to steal the property since the money and cheques were subsequently returned to the owner.

Bert Schulte, the prosecuting witness, is a farmer who resided in Minnesota. He came to California to purchase a ranch. He arrived at Sacramento about noon on February 10, 1946, on a Greyhound bus, and sat down in the station by the side of the defendant Post. The defendants were total strangers to him. Post began to twirl a device consisting of a match and a safety pin, to attract his attention. Post engaged Schulte in conversation, eliciting the information that he had on his person $56 in cash and travelers cheques of the value of $300. The man who sat with Post soon left the waiting room. Post remarked that it was “stuffy” in that room, and suggested that they walk down L Street to see the Capitol. Schulte consented to do so and they left the station together. After they had walked a distance of about one-half block, Post stopped and was talking with Schulte when the codefendant, Bishop, approached and addressed them, saying, “Fellows don’t go out this way. I lost twenty dollars last night up there. A lady friend . . . took the $20.00 and beat it.” To this remark Post replied, “You mustn’t work it that way. You should match; take all or nothing.” Bishop said, “I don’t know how you mean—‘take all or nothing.’ ” Post explained, “Flip a coin.” Bishop replied, “I don’t know how to flip a coin.” Then Post asked Schulte if he knew how to flip a coin, to which he replied that he had occasionally matched coins to determine who would pay for a cup of coffee. Post said “We will show him how to match.” Post produced a 50 cent coin which he held in his closed hand. Schulte said he thought they were merely showing Bishop how to match coins. He did not think they were matching coins for a stake.

[513]

If Bishop had. a similar coin, Schulte did not see it. Post stood between them. But Post announced to Bishop, “You lost. . . . It, will be $200.” Schulte saw Post counting a roll of bills, but he did not see Bishop hand them to him. Post then said, “Yes, that is $200.” Bishop then addressed Schulte, saying, “Now, you have to pay,” to which, Schulte replied, “I didn’t match for any money.” Bishop then said, “If I have to pay that man [Schulte] has to pay too.” Post said to Schulte, “Why, you have some cash money? . . . Give it to me and I will give it to you back.” Bishop said, “I want to see yon pay too first and you [Post] can give it back to him.” At the request of Post, Schulte gave him $56 in cash. Post then said, “You have Travelers Cheques,” and the witness replied, “Yes, I have six of them.” At the further demand of Post, he signed the cheques and handed them to' him. The witness testified, “He