People v. Palmer

NOURSE, J.

The defendant and Robert Arter were jointly charged with the crime of grand theft. They were tried before a jury and a verdict against both defendants was' returned, but the trial court, on motion, granted this defendant a new trial. From this order the state has appealed on a typewritten transcript.

We take the facts of the case substantially as stated in appellant’s brief, as they are not controverted by respondent. These facts stand' in the record undisputed inasmuch as neither the defendant nor his associate took the stand at the trial and no evidence was offered on behalf of either of them except an ineffectual attempt to prove an alibi in behalf of Arter. This evidence shows that Arter approached the complaining witness on the deck of the steamer on which the latter had just arrived in San Francisco and engaged him in conversation about the weather and the trip on the boat, giving to the complaining witness the impression that he also had arrived on the same steamer. Arter then suggested that he was not acquainted with San Francisco and would like to see some of the places of interest, particularly Chinatown. As the conversation proceeded it was agreed that the two parties would go ashore and that the complaining witness would direct Arter to places of interest in and about that portion of San Francisco. These two accordingly walked from the dock up California Street until they had passed Kearny Street, where respondent Palmer approached them and inquired as to the location of a certain hotel, the name of which was unknown to both of them. Palmer then related an experience of the night before with a girl whom he claimed had taken twenty dollars from him and had given this hotel as her address. Arter then suggested to Palmer that he should match the girl for the twenty dollars and Palmer immediately expressed complete ignorance of the meaning of the expression “match,” and

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thereupon pulled out a large roll of greenbacks which he showed to Arter and the complaining witness. The latter advised him to put the money in a bank as it was unsafe to carry it on his person, but Palmer replied that he had ten thousand more on his belt. He then stated that both Arter and the complaining witness seemed to be such good fellows that he would like to show his appreciation of their company and buy them a drink or a cigar. The complaining witness stated that he did not drink, and the conversation then returned to the mysteries of the game of matching and Palmer again asked Arter to explain how it was played. Arter then took two coins from his pocket and handed one to the complaining witness and showed Palmer how to match. Palmer and Arter then matched for cigars and continued in the game until they were matching for ten or twenty dollars at a time, continually urging the complaining witness to join with them. While this game was going on all three parties walked down Washington Street until they reached a point about the corner of Washington and San-some Streets, where Arter explained that he had lost all his money matching with Palmer and owed the latter ten dollars. P'almer insisted that Arter was shy ten dollars and he must pay him, to which Arter replied that he had no more money. Palmer then said, “That makes no difference, you know I have been paying all my bets, you must pay your bets.” Arter then asked the complaining witness to lend him ten dollars until they returned to the boat. As, the complaining witness took his wallet from his pocket and opened it to procure the ten dollars Arter shoved him from the sidewalk, seized his wallet and ran away with it. The complaining witness followed Arter but was unable to overtake him, and in the excitement lost sight of Palmer. A short time thereafter the complaining witness identified both Palmer and Arter at the city prison by placing his hand upon the shoulder of each. On this occasion, however, neither of the two made any response to the implied accusation of the complaining witness. They stood mute then and have sustained that position ever since.