People v. Shannon, Cr. 5694

• Citation: 305 P.2d 101,147 Cal.App.2d 300
• Decision Date: 28 December 1956
• Docket Number: Cr. 5694
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Julius SHANNON, Jr., Defendant and Appellant.

Page 101

305 P.2d 101

147 Cal.App.2d 300

The PEOPLE of the State of California, Plaintiff and Respondent, v. Julius SHANNON, Jr., Defendant and Appellant.

Cr. 5694.

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

Dec. 28, 1956.

Cary G. Branch, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

Julius Shannon, Jr. appeals a judgment convicting him of burglary. He demands a reversal on the grounds that (1) the evidence against him was illegally obtained, (2) he was improperly cross examined, (3) erroneous instructions were given and proper instructions were refused.

After midnight in late February 1956, appellant and his codefendant Williams took a drive in appellant's automobile along the streets of Los Angeles. Williams suggested the idea of obtaining cigarettes from some store. On Main Street they found the weapon for their purpose, a piece of cement brick. While driving on West Pico Boulevard, they stopped at a store with a glass front window through which Williams hurled the concrete. Through the space created by his vicious missile, Williams entered and duly returned with 'a few cartons' of cigarettes. These he passed on to appellant who placed them in the rear of his car. Williams returned into the store for more of the same. Observant of his associate, Williams saw appellant driving away followed by a police car. Appellant was promptly apprehended and just as he was being returned to the store, the officers detained Williams as he emerged through the paneless door.

Appellant admitted to the officers the facts in the foregoing recital and added that he had approved of the proposed method of acquiring cigarettes; that he had placed the cartons in his automobile; that when he noticed the police car make a U-turn to approach him, he became frightened and fled. At the trial he testified that he was asleep during the burglary. Not only was he contradicted by the events that occurred at the scene but he was impeached by proof of two prior felony convictions.

There was no illegal arrest. Appellant was found sitting in his car about 4 o'clock in the morning in front of a store, his motor running. He attempted flight as the police approached him. Because of the suspicious circumstances, they searched his conveyance and found the cartons. But regardless of the facts, no objection was made at the trial to the evidence thereof. Hence, he cannot on appeal for the first time urge the doctrine of illegal search and seizure where his trial occurred following the decision in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905. He is deemed to have waived all possible objections by his silence at the trial. People v. Maddox, 46 Cal.2d 301, 304, 294 P.2d 6; People v. Farrara, 46 Cal.2d 265, 268, 294 P.2d 21; People v. Kitchens, 46 Cal.2d 260, 262, 294 P.2d 17.

Appellant complains that the District Attorney 'spent considerable time in cross examining appellant by going into the facts of appellant's prior convictions.' He advances the thesis that details of a prior felony conviction 'not appearing in the judgment record of conviction should not be gone into by either side.' The record does not bear out such contention. He answered that he had been twice convicted of a felony; once for possession of marijuana, once for automobile burglary. The prosecutor followed such answer by having appellant admit that he had plead guilty to having burglarized an office building and that while on probation he wrote to his probation officer that he was present during the burglary and was awake. The foregoing admissions were elicited from appellant to counteract his intimations that he was in fact innocent of the prior charge.

Not only is it proper to impeach a witness by proof of his conviction of a felony, but errors or falsehoods in his explanations may be exposed by contradictory proof. The district attorney is allowed to show that, under such circumstances, the defendant has attempted to deceive the court and is therefore untrustworthy. The prosecutor is not foreclosed of further inquiry by having asked the accused whether he had been convicted of a felony; he may proceed to inquire into the nature of the crime. People v. Williams, 27 Cal.2d 220, 228, 163 P.2d 692.

Moreover, while under cross examination with respect to his felonies, appellant made no objection to any of the questions which he now contends were prejudicial. He thereby waived all right to complain thereof on appeal. People v. Coontz, 119 Cal.App.2d 276, 280, 259 P.2d 694; People v. Agajanian, 97 Cal.App.2d 399, 405, 218 P.2d 114.

Appellant contends that the evidence was entirely circumstantial and that he was prejudiced by the court's failure to instruct on the duty of the jury when the evidence is 'susceptible of two reasonable, theories' as embodied in Caljic Instruction 26, ¹ in addition to Caljic 24 and 27 which were given. He asserts that inasmuch as he was asleep when Williams burglarized the store, the jury should have been instructed as to their duty in the event they should find such explanation equally reasonable with the theory that he was a conscious participant in the crime. But the evidence was not wholly circumstantial. It was in the main direct. The store had been broken and burglarized; two half cases of cigarettes had been removed. Appellant was found sitting behind the wheel, parked in front of the store, motor running; carrying away the stolen merchandise, he attempted to flee from the officers. His companion was arrested in the act of bringing additional loot from the store and defendant immediately confessed his guilty participation. Nothing more was required to prove that he was aiding his confederate in the commission of the crime. See People v. Martin, 128 Cal.App.2d 361, 364, 275 P.2d 635. When any circumstantial evidence is merely incidental and corroborative of direct evidence, an instruction on circumstantial evidence is not necessary. People v. Jerman, 29 Cal.2d 189, 197, 173 P.2d 805. In the instant case, direct evidence established the presence and participation of appellant at the scene of the robbery. Not only was he caught in the very act but subsequently he fabricated a falsehood to explain how he had gained possession of the cigarettes and then confessed. In view of the overwhelming proof of his guilt, the propriety and correctness of the instructions becomes a matter of no importance.

Appellant vainly complains that he was prejudiced by the court's failure to instruct on appellant's 'theory of the case'; that is to say that appellant had been asleep. No such instruction was offered. The court had advised the jury that in order to convict appellant, it was essential that he intended, at the time of the entry into the store, to steal the property of another. (Caljic 201.) Also, the jury were directed that if appellant did not participate in the burglary or have knowledge thereof, he could not be convicted of the offense. Having covered general, applicable principles in the charge, the court was not obliged to give sua sponte more specific instructions as to defendant's theory of the case. People v. Warren, 16 Cal.2d 103, 116, 104 P.2d 1024.

Appellant contends that Caljic Instruction 52 (alternate) printed on the margin ² was not sufficient; that it should have defined 'impeach' and have explained how the jury should consider proof of a prior felony conviction. The instruction given is correct, accurate and comprehensive. Nothing should have been added. The word 'impeach' is in common usage--meaning to discredit. Such ordinary words do not require defining. They are presumed to be understood by the jurors. People v. Chavez, 37 Cal.2d 656, 668, 234 P.2d 632. The instruction does not suggest that a prior conviction of a felony on the part of the witness must necessarily discredit his entire testimony. The jury were fully informed that they are the sole and exclusive judges of the credibility of witnesses and that the instructions given to them on that subject are only guides for their assistance. Appellant urges that the admonition contained in the instruction that a witness' testimony may be impeached by 'evidence affecting his character for truth, honesty, and integrity' is in error because no such...