People v. Allen

SHINN, P. J. Appellant was accused by information of four counts of grant theft. In Count II, it was alleged that he took $750 from Fred M. Harrison on or about July 3, 1957, and in Count IV, it was alleged that he took $2,100 from Guy F. and Frances L. Gilson on or about May 31, 1957.

The cause was submitted on the testimony contained in the transcript of the proceedings had at the preliminary hearing, subject to the right to introduce further evidence, and to all legal objections by appellant. The People introduced no further evidence, appellant put on witnesses and testified in his own behalf, and in a nonjury trial was found guilty as charged in Counts II and IV, and not guilty as to Counts I and III. The court further found the allegations of four prior felony convictions to be true. Appellant now appeals from the judgment and from an order denying his motion for a new trial

During 1957 appellant was the operator of a restaurant known as the East Side Grill. The restaurant was part of the physical plant known as the East Side Hospital and appellant was a concessionaire as to the Grill. The premises of the Grill, which was part of the hospital operation, were owned by the Allied Hospital Management Company through a holding company, as were the restaurant fixtures. Appellant apparently owned the cooking utensils, cash register, chairs, ice cream freezer, two French fryers and some silverware. In complianoe with the terms of the concession agreement appel[661]lant made certain replacements and improvements, including a new sink and refrigerator. All other items located on the premises, such as the stoves and coolers, were the property of the hospital company.

In July 1957, appellant approached Fred Harrison soliciting a loan of $150 with which to buy some hams cheaply. Harrison gave him $150 in exchange for a check in that amount which appellant asked Harrison to hold until after the weekend, stating that he would then have the money in the account. About a week later Harrison attempted to cash the check, but the account had been closed. At this time he discovered that the check had been postdated eight or nine days.

Shortly thereafter appellant again approached Harrison and represented that he was going to purchase an adjoining building and start a large restaurant, that he was also going to buy some sort of wagon which would haul food from one hospital to another. He displayed a letter apparently received from a hospital and asked Harrison to loan him $13,000 but Harrison stated that this was beyond his financial capabilities. Appellant then stated that he had purchased the hams but had no place to put them, that he needed a big refrigerator for this purpose. He took Harrison into the restaurant and showed him the changes he would make stating that he needed $750. He showed Harrison the cooking utensils, the stove, the place to cook the food, the coolers, dishes, refrigerator and other items located on the premises. When asked whether he owned all these fixtures and items in the restaurant appellant replied that he owned them and that he owed nothing on them. He promised to give Harrison a chattel mortgage upon the equipment and fixtures in the café. He handed Harrison what purported to be a chattel mortgage for $750. Harrison asked appellant to have his wife sign it and have it. notarized, which he promised to do. Appellant took the document and brought it back the next day in an envelope. Harrison then gave appellant the $7511 and took the envelope, but soon discovered that it was not executed as a mortgage, was not notarized and was not signed by appellant’s wife. It described the property as “all that certain personal property situated and described as follows, to-wit: Cafe 4062 Whittier Blvd, known as Eastside Grill and any other property of undersigned without limit.” Appellant immediately left the café and disappeared. Harrison