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District Court of Appeal, First District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas HOUSTON, Defendant and Appellant.

Cr. 3782.

Decided: June 11, 1958

Edward F. Towers, San Francisco, for appellant. Edward G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

Defendant and appellant was charged by information with robbery and a prior conviction for forgery. Appellant entered a plea of not guilty of the crime charged and denied the prior conviction. Appellant properly waived a jury trial. The court found the appellant guilty of grand theft and ordered that the prior conviction charged in the information be dismissed. Appellant's motion for probation was denied and judgment entered, sentencing him to the State Prison for the term prescribed by law.

The appeal is based entirely on the sufficiency of the evidence. The only witnesses were the appellant, the arresting officer and the complaining witness, Walter Behncke.

The complaining witness testified that: On May 7, 1957, he was alone in the vicinity of Third and Minna Streets in San Francisco. He had had four or five drinks and was somewhat intoxicated. The appellant and two other men gathered around him. There was no violence. One of the three men reached into Behncke's inside coat pocket and took out a wallet. There was no money in the wallet, only identification cards. Behncke chased the three men but did not know in what direction. Shortly after he had given up the chase, Behncke saw a police officer and stated that he had been robbed. Behncke was able to identify the appellant as one of the three men because the appellant wore glasses and a trench coat.

The arresting officer, Lloyd Enmark, was directing traffic at Third and Mission Streets on May 7th. He saw the appellant running down Minna Street from Third Street to New Montgomery Street. He ran down Minna after the appellant who ran across the street and then came back towards the officer. The officer apprehended the appellant and found Behncke's wallet in the appellant's right hand coat pocket. The appellant was wearing glasses and a trench coat. The officer took the appellant back to Third and Minna Streets, where Behncke was talking to three Inspectors from the Pawn Shop Detail. As the officer brought the appellant up, Behncke said, ‘There's one of them.’

The appellant testified that he had found the wallet on the street, and was about to turn it in at the Examiner Building when he was grabbed from behind by the officer. He handed the wallet to the officer saying, ‘I haven't done anything. I just found this wallet down the street.’ He further testified that when he got to the corner, ‘Mr. Behncke was standing there with two or three police officers and so I immediately wanted to know who it was that got robbed.’ The appellant further testified that he could not run. He admitted two prior convictions.

It is clear from the above that the evidence is sufficient to support the verdict.

Judgment affirmed.

KAUFMAN, Presiding Justice.

DOOLING and DRAPER, JJ., concur.