People v. Tate

GRIFFIN, J. Defendant and appellant was charged in count I of an information with the crime of grand theft in that he did on May 7, 1945, “wilfully, unlawfully and feloniously take and steal from the person of one Robert Nealey certain personal property, to wit, lawful money of the United States of America,” in violation of sections 484 and 487 of the Penal Code. In counts II, III and IV, he is charged with prior convictions of felonies and the serving of prison terms thereunder. Defendant pleaded not guilty to count I and admitted the prior convictions as charged. After trial, a jury found him guilty on count I. The court sentenced him to state prison for the term prescribed by law and adjudged him to be an habitual criminal. Defendant was represented by counsel at [469]his trial but he has filed his own notice of appeal and has prepared a document setting forth certain claimed errors and denominated it an opening brief.

On May 7, 1945, the complaining witness, Eobert Neeley, entered a cafe in Brawley. He had about $80 in bills in his wallet, which wallet was in his pants pocket. He and defendant sat on stools, talking and drinking. Neeley brought out his wallet, in defendant’s presence, to buy a drink. He later went to the back of the cafe to the rest room, returned, and then sat at the counter with his head down upon it and went to sleep. After a few minutes passed he moved over to a booth and continued his sleep. Thereafter, he stood up for a while and then fell upon the floor. At that time, defendant went over to him, leaned over him as though he was trying to pick him up, and while doing so, he put his hand in Neeley’s trouser pocket, withdrew the wallet containing the currency, and placed it in his own pocket. This was observed by two eyewitnesses who were present in the cafe. Defendant immediately left the premises and went down an alley. One of the witnesses followed him, shouted to him, but defendant “broke and ran. ’ ’ Within ten minutes thereafter Neeley aroused himself and discovered that his wallet was gone. He reported the loss to the police.

One witness, who saw defendant remove the wallet from Neeley’s pocket, went to defendant’s house, told him that too many people had seen him take the money, and that he should give it back. He denied he had it.

At the trial defendant and the proprietress of the cafe testified that when Neeley fell to the floor defendant did not go near him but did leave the cafe shortly thereafter.