People v. Hickok
| Citation | 17 Cal.Rptr. 875,198 Cal.App.2d 442 |
| Decision Date | 26 December 1961 |
| Docket Number | Cr. 3901 |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. George William HICKOK, Defendant and Appellant. |
| Court | California Court of Appeals |
Paul C. Maier, San Francisco, for appellant (under appointment of District Court of Appeal).
Stanley Mosk, Atty. Gen., John S. McInerny, John L. Burton, Deputies Atty. Gen., for respondent.
Appellant's triple attack upon his conviction for burglary fails to establish a basis for reversal. Despite his contrary contentions, the evidence fully substantiates the judgment; the court did not improperly instruct the jury as to the identity of the stolen property, and the court property refused a proffered instruction as to an alibi.
On August 7, 1960, at about 2 o'clock in the morning, Robert Chapman, owner of a Union Oil Station at the southwest corner of an intersection in Sunnyvale, heard the breaking of glass at the Shell Station located on the northwest corner of the same intersection. Shortly thereafter he phoned the police; a few minutes later Officer Link arrived by car. The officer saw someone run away from the general area, negotiate a fence and start back across a vacant lot. After ordering the person to halt, the officer shouted, "Here he goes" or words to that effect to attract the attention of other officers who had also arrived in answer to the call and who were in the rear of the station area. He held a spotlight on the running individual and, so far as he was able, followed in his car. When he could no longer continue he circled some buildings. The headlights of his car illuminated the back of one of the buildings; he 'noticed three persons' who had stopped at that point. They turned out to be two officers and appellant.
When the officer approached the men, all three of them were breathing heavily, and appellant was wringing wet with perspiration. The officers found an argyle sock in the area where appellant was apprehended. At headquarters, at the time of booking, appellant emptied his pockets of a galaxy of coins, which appellant said that he had won in gambling. One of the quarters was discolored. Subsequently, the officers discovered that a window at the rear of the Shell Station had been broken.
Later that morning Mr. Weingartner, the owner of a Mobil Station at the same intersection, found that the station had been burglarized and that a considerable number of coins had been taken from the cash drawer. Some $3.90 was missing from a cigarette machine. Mr. Weingartner testified that he recognized the discolored quarter as one which he had seen on the previous evening prior to leaving for his home.
Leland G. Cook, a public safety officer of Sunnyvale, testified that he undertook a partial investigation of the Mobil Station immediately after appellant's arrest but did not discover a broken window. Near the broken window at the Shell Station the owner found two screwdrivers from the Mobil Station and the officers found another argyle sock.
Charged with burglary and attempted burglary, appellant, upon a trial by jury, suffered a verdict of guilt in the second degree on both counts. He admitted four prior convictions; he did not take the stand in his own defense. Appellant appeals from the convictions of burglary and attempted burglary but presents no grounds for reversal of the judgment on the attempted burglary. Nor have we found any basis for appeal of the latter conviction.
We examine the three issues raised by appellant as to the conviction for the burglary: the sufficiency of the evidence to support the conviction; the propriety of the instruction as to the identity of the stolen property and the validity of the refusal to give an alibi instruction.
The verdict finds ample substantiation in the evidence. Appellant's preliminary point that the record does not support a finding of a 'breaking' of the burglarized station misconceives the requisites of burglary: People v. Tims (1959) 171 Cal.App.2d 671, 341 P.2d 56, states: (P. 673, 341 P.2d p. 58.) Penal Code section 459 () clearly specifies that such intent suffices.
Since appellant actually possessed a roughly equivalent number and amount of coins to those stolen, his emphasis upon the failure of an exact identification does not defeat the verdict. For one thing the owner of the station testified that a quarter found in appellant's possession 'resembled' that which he had inspected the previous night. Its discoloration distinguished it, and this characterustic substantiated its identification. For another, a comparison of the coins stolen and those possessed by appellant produces a dramatic similarity. Appellant had 13 half dollars; 12 were stolen; he had 11 dimes and 13 were stolen. While appellant possessed 12 more than the 33 quarters stolen and 12 more than the 24 nickels, the coins taken from the rifled cigarette machine, which contained quarters and nickels in the amount of $3.90, almost precisely accounts for the difference. Appellant's claim that these facts render a mere 'superficial similarity' dissolves in the acid of the record. To contend that this evidence does not serve as a substantial basis for the finding and 'should not have gone to the jury' is to argue that the stolen and the recovered coins must match with mathematical accuracy. (See People v. Harsch (1941) 44 Cal.App.2d 572, 112 P.2d 654.)
Appellant's claim 'that the 'possession' evidence cannot be used to 'bootstrap' the evidence necessary to show that a burglary was committed' collapses upon analysis of the other evidence. The police found appellant running away from the Shell Station located in the same intersection, which he had attempted to burglarize; the owner of the Shell Station found two screwdrivers taken from the Mobil Station; the police found one argyle sock where appellant was arrested and another, although not shown to have been the mate of the first, at the Shell Station. Such evidence might well have demonstrated a common scheme to burglarize both stations. In any event, as stated in People v. Alexander (1947) 78 Cal.App.2d 954, 178 P.2d 813: 'While such possession [of stolen property] would not, standing alone, suffice to determine the possessor's guilt, yet as evidence, its quality is of such high degree that only slight corroborative proof of other inculpatory circumstances would warrant a conviction.' (Pp. 956-957, 178 P.2d p. 815.)
Finally appellant's reliance upon People v. Robison (1961) 193 A.C.A. 437, 14 Cal.Rptr. 181, avails him nothing because that case turned upon the determination of which of two persons present at the time of the offense had committed it; we face the identification of only one known culprit here. Ample evidence in our case substantiates a verdict of his guilt.
Appellant's second point as to the impropriety of the instruction upon the identity of the stolen property encounters the insurmountable obstacle that appellant himself proposed the instruction. According to appellant, the instruction did not 'clearly advise the jury of its duty to determine whether or not the purportedly stolen property * * * [was] in fact the property which was stolen.' Not only does the fact that appellant submitted the instruction answer appellant's present and belated objection to it, but also the precept that a court of its own motion will instruct only on general legal principles but not upon "specific points developed through the evidence introduced at the trial, unless such instructions are requested by the party desiring them." (People v. Warren (1940) 16 Cal.2d 103, 117, 104 P.2d 1024, 1031.)
Ingeniously developing a passage in the record to the effect that an officer's nocturnal and partial inspection of the Mobil Gas Station did not disclose a broken window, appellant's counsel posits his third point upon this failure. His hypothesis is that the burglary must therefore have occurred after appellant had been taken into custody. Hence, says counsel, the...
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