People v. Nichols

WHITE, J.

In an information ified by the District Attorney of Los Angeles County defendant was charged in two counts thereof with the crime of presenting false claims for the payment of losses under two contracts of insurance. (Ins. Code, § 556, subd. a.) It will not be necessary to discuss or consider count one, because while the defendant was convicted thereunder, a new trial was granted and the charge dismissed. This appeal is prosecuted from the judgment of conviction and the order denying a new trial as to count two.

Epitomized, the facts in connection therewith are that the defendant was the owner of a drive-in restaurant, known as Dixie Drive-In, located in the town of El Monte, in Los Angeles County. He came to California from the State of Georgia in October, 1940, being accompanied by his brother and the latter’s wife. He commenced operation of the above mentioned business in December, 1940, or January, 1941. On February 17, 1941, the Canadian Indemnity Company issued its contract of insurance in favor of defendant covering loss by burglary at the aforesaid premises. The policy limit was $250. On the morning of March 4, 1941, at approximately 2:30 o ’clock, W. B. Ambrose, the cook employed by appellant, closed the restaurant, and in accordance with his custom placed the money from the cash register in the oven. He did not count the money, but estimated the amount thereof to be between fifty-five and sixty dollars. Shortly after four o’clock on the same morning defendant reported to the sheriff that his place of business had been burglarized. The investigating officer found that a pane of glass in the back door had been broken, but the glass was resting against the door in such a way that it was necessary to remove the glass in order to open the door. The telephone cash box had been torn from the wall and the receipts taken. The cigarette machine and the coin boxes connected with the automatic phonograph had been broken open and the cash removed therefrom. Defendant informed the officer that the sum of $59.25 in cash had been taken from the oven; that three malt mixers valued at ninety dollars were missing, and that a set of Toledo scales valued at fifteen dollars had been taken, as had been three boxes of cigars valued at six dollars. About ten o’clock on the same morning defendant informed a second investigating officer

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that approximately sixty dollars had been taken from the refrigerator in addition to the money taken from the oven. However, defendant stated to this officer that no other articles were missing. A short time thereafter defendant presented to the insurance company a claim under his burglary policy. In the claim defendant listed the following articles as stolen: 3 boxes of cigars, value $6.00; 3 malt mixers, value $84.00 ; 1 Toledo scales, value $20.00; 1 ceiling fan, value $25.00; 1 eight-slice toaster, value $30.00; 1 coffee maker, value $24.00; 1 neon sign clock, value $54.00; 1 leg of pork, value $3.50; 1 ham, value $3.50; $153.00 in cash.