People v. Gray

180 Cal. App. 2d 594, 4 Cal. Rptr. 605, 1960 Cal. App. LEXIS 2376
CourtCalifornia Court of Appeal
DecidedMay 3, 1960
DocketCrim. No. 6931
StatusPublished
Cited by1 cases

This text of 180 Cal. App. 2d 594 (People v. Gray) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Gray, 180 Cal. App. 2d 594, 4 Cal. Rptr. 605, 1960 Cal. App. LEXIS 2376 (Cal. Ct. App. 1960).

Opinion

LILLIE, J.

Defendant was charged with two counts of grand theft alleging the taking of personal property in excess of $200 and a truck and trailer valued at $13,000; and one count of violation of section 503 , Vehicle Code. The court heard the matter without a jury and found defendant guilty on all counts. On appeal he urges the sole issue of lack of substantial evidence to implicate him in the commission of the three offenses.

A truck and trailer owned by Hiller and Morrow, loaded with 23 tons of reinforcing steel owned by Butherford and Skoubye, were stolen and the load sold to Alex Novak and Sons, buyers of scrap metal. Viewed in the light most favorable to the judgment of conviction, the evidence discloses that on September 9, 1957, one Charlie Green “made a deal” to sell the load of steel to Melvin Aberman, buyer and sealeman for Novak and Sons, who had known Green for about three years and previously done business with him. About an hour later, Aberman saw defendant, a truck driver by occupation, drive the truck and trailer with the load into the yard of Novak and Sons; asked his name, defendant told him it was “Campion.” At that time Charlie Green and James Alloway, then unknown to Aberman, drove into the yard in an automobile. Aberman weighed the truck and instructed the defendant where to unload it. Defendant drove to the location and later returned the empty truck to the scale where Aberman asked him to sign a weight slip (Ex. 1), which he did, writing the name “Sam Campion” thereon, and gave him a stub. Green, defendant and Aberman then went to the cashier who, at Green’s request, gave Green five checks made out to him in various amounts. Green said he wanted it done that way so he could get his share of the load. Later, Alloway cashed one of the checks (Ex. 4) for $250 at a food market, endorsing his name on the back.

Immediately after defendant’s arrest, Officer Johnson had a conversation with him consisting of a complete denial “to every interrogation as to the transaction whatsoever;” however later, but in the same conversation, he admitted that Alloway called him on Sunday night and asked him if he wanted to go for a ride, which he agreed to do, and they ended up at Green’s residence, picked him up and drove to where the truck was parked; that he told Alloway he did not “want any part of it,” “didn’t want any part of anything out of line”; and that Alloway then drove the truck to Novak and Sons

[597]*597and he accompanied Green in Alloway’s car to the yard. He said he had done time with Alloway and had been closely associated with him but denied driving the truck, getting any money or being connected with the transaction in any way.

Defendant took the stand and testified he was a truck driver and had known Alloway and his wife for some time; that on the morning of the offense (Monday) he went to Alloway’s home around 7 or 7:30 and the latter asked him if he wanted to ride to Ontario with him where he had to transact some business; that they drove to Charlie Green’s and then stopped on a side street behind a junk yard where Alloway got out, started the truck and pulled it into the yard; that Green got out of the car and went into the office; and that although he did get out of the car while in the yard he had nothing to do with the transaction. Defendant described the business done by Aberman with Green and Alloway, and it was then he said he suspected the steel was stolen. Thereafter, Alloway offered defendant $50 to drive the truck over to Riverside, but defendant said he “did not want anything to do with it.” After leaving the yard all three stopped several times on the way back to Los Angeles while Green and Alloway cashed some of the checks. Defendant was arrested in February of 1959, at which time he made out a handwriting exemplar card.

Neither Charlie Green nor James Alloway was called to testify.

It is contended that Aberman’s testimony—that it was defendant who drove the load into the yard, gave a false name, weighed the load and unloaded the same, signed the weight slip, took a stub from him and went to the cashier for the checks—was so impeached by defendant’s testimony and that of the handwriting expert John L. Harris, as to render the evidence ‘1 so incredible that it could not support the judgment. ” Appellant argues that Harris’ opinion—that the signature “Sam Campion” on the weight slip (Bx. 1) was not in the handwriting of defendant and that the signature of James Alloway on one of the checks (Bx. 4) had closer resemblance to the disputed signature—destroys the probative value of Aberman’s identification of him as the person with whom he had the transaction.

As to the single point that the evidence is insufficient to support the verdict “. . . it is the settled rule that an appellate court ‘will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by’ the trial court to warrant its implied findings, [598]*598and before they 1 can be set aside ... it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below.’ (People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778].)” (People v. Jones, 36 Cal.2d 373, 375 [224 P.2d 353].) Applying this rule, defendant’s claim of insufficiency of the evidence cannot be sustained.

The issue here presented primarily involves the weight and value of the evidence, the credibility of the witnesses and a determination of the factual conflict created by the testimony of Aberman and that of defendant and Harris, all exclusively committed to the trial court (People v. Thomas, 25 Cal.2d 880 [156 P.2d 7]; People v. Ashley, 42 Cal.2d 246 [267 P.2d 271]). We are not required to give credence to conflicting testimony; our function is to appraise its effect (People v. Merkouris, 52 Cal.2d 672 [344 P.2d 1]; People v. De Paula, 43 Cal.2d 643 [276 P.2d 600]; People v. Carnine, 41 Cal.2d 384 [260 P.2d 16]; People v. Benford, 53 Cal.2d 1 [245 P.2d 928]); and a reviewing court cannot reject the testimony of a witness that has been believed by the trier of fact unless there exists either a physical impossibility that it is true or its falsity is apparent without resorting to inferences and deductions (People v. Muniz, 172 Cal.App.2d 688 [342 P.2d 53]; People v. Roberts, 47 Cal.2d 374 [303 P.2d 721]).

The trial judge believed the testimony of Melvin Aberman, the prosecution’s witness, which we find to be neither physically impossible of belief nor apparently untrue; and rejected the defendant’s version of what occurred. In doing so, he stated “the story that the defendant tells is highly incredible when viewed in the light of the conduct of an innocent man. ...” Relative to the consideration and value the trial court gave to the opinion of John L.

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Bluebook (online)
180 Cal. App. 2d 594, 4 Cal. Rptr. 605, 1960 Cal. App. LEXIS 2376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gray-calctapp-1960.