PEOPLE v. THORNE (1937)

Defendant was convicted after trial by jury of grand theft. The appeal is from the judgment and order denying his motion for a new trial.

Viewing the evidence most favorable to the prosecution (People v. Dukes, 90 Cal.App. 657, 659, 266 P. 558), the facts in the instant case are:

On or about November 13, 1936, defendant represented to Charles W. Hooper that he had a device whereby he could make $10 bills out of $1 bills. November 16, 1936, defendant met Mr. Hooper and they repaired to an apartment house. Here Mr. Hooper delivered to defendant $2,600 in bills of the denomination of $50 and $20. These defendant emersed in a solution, placed them between pieces of blank paper, and then stepped into the bathroom, telling Mr. Hooper he intended to dip the bills in a solution, which was in the bathtub. After all the bills had been thus treated, defendant brought from the bathroom a package which appeared to be the complete stack of bills with a $1 bill on the top and bottom, and placed it in a press. Defendant then stated that it was necessary for him to go to his hotel to obtain some additional paraphernalia to complete the process.

Mr. Hooper drove him to his hotel and remained in his automobile while defendant supposedly went to his room. After waiting a considerable period, Mr. Hooper returned to the apartment, where the operations described above had taken place, and on opening the package which defendant had placed in the press, he found a large stack of blank paper placed between two $1 bills. The $2,600 which he had delivered to defendant had disappeared, having been taken by defendant with him in a small bag at the time he left the apartment.

Defendant relies for reversal of the judgment on the following proposition:

It was prejudicially erroneous for the trial court to receive over objection evidence that defendant had attempted the commission of a similar offense on a prior occasion.

This proposition is tenable. The law is settled that evidence of other offenses than the one charged, except in rare cases, of which this is not one, is incompetent as proof of the charge upon which accused is on trial. People v. Ranney, 213 Cal. 70, 75, 1 P.(2d) 423; 8 Cal.Jur. 58; 4 Cal.Jur. 10 Yr.Supp. 561. In the instant case there was received in evidence over defendant's objection testimony by E. W. Merritt that on or about November 1, 1936, in the city of Stockton a man representing himself to be Mr. Zimmerman, whom the witness identified as defendant, attempted to interest him in a proposition similar to that which defendant employed to obtain money from the prosecuting witness. However, the plan was never consummated. The witness further testified that he had not seen the defendant from that date until he saw him in court at the time of the present trial.

Under the rule above stated, the reception of this evidence was prejudicially erroneous as it did not in any way tend to prove or disprove any issue in the case, nor did it fall within any one of the recognized exceptions to the general rule above stated, such as evidence tending to show a common plan or system. The crime charged against defendant in the instant case and the crime relative to which Mr. Merritt testified were two separate and distinct offenses in no way related or connected one with the other.

For the foregoing reason, the judgment and order denying the motion for a new trial are and each is reversed and a new trial is granted.

McCOMB, Justice.

We concur: CRAIL, P. J.; WOOD, J.