People v. Dempsey

HART, J.

Convicted by a jury under an information filed in the superior court of Sacramento County, charging her with the crime of grand larceny, the defendant prosecutes an appeal from the judgment of conviction and the order denying her motion for a new trial, and specifies as the grounds upon which she is entitled to a reversal that the evidence is insufficient to support the verdict and that the court erred in admitting certain testimony.

The specific charge was that the defendant took from the person of one Edwin McKay a wallet containing $16 in currency, consisting of a $10, a $5, and a $1 bill. (Sec. 487, subd. 2, Pen. Code.)

The story as told upon the witness-stand by said McKay is in substance as follows: That on the evening of January 5, 1923, about the hour of 9 o’clock, he started from the residence of a friend on Tenth Street, between G and H, in the city of Sacramento, and proceeded toward the residence of his cousin at 816 Eleventh Street in said city. He was walking on the south side of H Street, between Tenth and Eleventh, when he saw two colored women, one of whom was the defendant, coming down the steps of a house near Eleventh and H Streets. He proceeded, walking on the outside of the sidewalk, and when about to pass the women the defendant addressed him, saying, “Hello.” Thinking that it was some acquaintance who had thus addressed him, he turned and looked toward the women and the defendant immediately stepped in front of him and said, “Come and go with me,” and at the same time grabbed him by the lapel of the coat. He replied that he would not accompany her and asked her “to let go of him.” He extricated himself from her grasp and resumed his way to his cousin’s house. On arriving there he told of the circumstance of having been thus accosted by the defendant and it was then either suggested to him or occurred to his mind without suggestion that he might have been robbed. He thereupon examined the right pocket of his coat in which he carried his wallet and found that that article was missing. Immediately he started out to find the colored women whom he had met on the street, but first called to his assistance a

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friend by the name of Mr. Palm, and together they proceeded over to I Street through a plaza between Ninth and Tenth and I and J Streets toward the Pythian Castle, which is located on the northwest corner of Ninth and I Streets. Just before starting across the street he espied the two women going toward the Pythian Castle from the direction of Eighth Street and he declared to his friend that they were the women whom he had met on Eleventh Street. McKay and Palm crossed over and intercepted the women and the former accused the defendant of having robbed him of his wallet and the money therein contained. She positively declared that she had never seen him before and denied knowing anything about his wallet or money. A controversy ensued, whereupon the companion of the defendant, whose name was subsequently learned to be Ruby Roberts, offered to give McKay a $20 bill which she had in her hand. He stated that he did not want the $20 bill; that all he wanted was the return of his wallet and the $16 that were therein at the time the wallet was taken. Finally, however, McKay accepted the $20 bill and in the meantime, the police department having been notified of the alleged larceny, two police officers appeared at the corner where the parties were engaged in the controversy and arrested the defendant, her companion having previously fled from that locality. McKay testified that, when Ruby Roberts offered him the $20 bill, the defendant said: “Maybe I can make it up all right.” The defendant was taken to the police station by the officers and was there searched, but the wallet was not found in her possession. On the next day, however, about 11 o’clock in the forenoon, the janitor of the Pythian Castle, who then resided in the basement of said building, accompanied by another gentleman, went out upon the sidewalk and looked about to ascertain if the wallet of McKay or any other article had been dropped or left there by either the defendant or her companion. Growing alongside of the Pythian Castle are a large number of geraniums, and after considerable searching the janitor found underneath one of the geraniums „ an empty wallet, which was identified by McKay as the one he had in his possession the night that he met the defendant and her companion, and which contained at that time the $16 in currency. McKay positively testified that he remembered having placed