People v. Byrnes

SHAW, J.

Defendant was convicted upon an indictment charging him with committing the crime of grand larceny.

He appeals from the judgment and an order denying his motion for a new trial.

The scheme, trick, and device by means whereof the property of one Friesz was stolen, is fully described in an opinion of this court filed in the case of

People

v. Rial, 23 Cal. App. 713, [139 Pac. 661], the theory of the prosecution being that defendant was the one therein referred to as the “man behind the counter,” who, as shown, aided and abetted Rial in the commission of the crime for which the latter was convicted. While conceding the property of Friesz was obtained by Rial and his accomplices in the manner there set forth, defendant nevertheless claimed that he was not a party to or participant in the fraud, and that at the time when the transaction occurred in Venice he was in San Bernardino, some seventy-five miles distant therefrom, from which fact, if true, it must follow that he was innocent of the charge. The crime was, as alleged, committed on February 18, 1913, ■and the case was tried in June, 1914. At the trial Friesz identified defendant as being the man behind the counter who received the bets and, from pretended information received by him over the telephone, shown to have been a false pretense in that it was not connected with or a part of a telephone system, called off the places of the horses falsely represented to be running, and announced the result. The testimony of Friesz was the only evidence offered which tended to identify defendant as being present and participating in the commission of the crime. To controvert this proof, defendant testified that at the time in question he was in San Bernardino, and he procured a witness who, so far as shown, had no interest in the matter, who testified that in said city he met and talked to defendant at about the same hour when the prosecution claimed he was in Venice. A few days after the

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alleged offense, defendant was placed under arrest and incarcerated in jail. While there he was conducted to a room wherein there were a number of others, and Friesz being present was asked by officers accompanying him if he recognized any one in the room, other than Rial, who was at the pool-room or acted in connection with Rial, to which, according to the testimony of the officers, he replied in the negative. And on another occasion about the same time, when inquiry into the matter was being considered by the grand jury, and Friesz being in the corridor near the grand jury room, defendant was brought into the corridor and Friesz was informed by officers that the man arrested as being the one who received the bets was present among the persons there gathered, and, as shown by the testimony of such officers, after looking around, replied that he did not recognize him. Friesz claimed that he did at the times in question recognize defendant, but made no answer to the inquiry for the reason that he was “working under the rulings of the district attorney.” He also admitted that after the trial of Rial, wherein he appeared as a witness, he stated to the deputy district attorney in charge of the prosecution of that case that he could not identify the “man behind the counter” who aided Rial in the perpetration of the crime, giving as a reason for making the statement the alleged fact that he feared if he told the truth “some of the bunch” would inflict bodily injury upon him. Upon this evidence so given by Friesz, and notwithstanding the evidence tending to impeach him as a witness, the jury were clearly jutified in refusing to accept the testimony of defendant and his witness as sufficient to establish the