People v. Carnes

• Decision Date: 08 September 1959
• Docket Number: Cr. 6706
• Citation: 343 P.2d 626,173 Cal.App.2d 559
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur Charles CARNES and William John Miller, Defendants, William John Miller, Defendant and Appellant.

Page 626

343 P.2d 626

173 Cal.App.2d 559

PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur Charles CARNES and William John Miller, Defendants William John Miller, Defendant and Appellant.

Cr. 6706.

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

Sept. 8, 1959.

Rehearing Denied Oct. 5, 1959.

Hearing Denied Nov. 3, 1959.

Edward L. Lacy, Canoga Park, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert M. Sweet, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Defendants were jointly charged with the crime of burglary in violation of section 459 of the Penal Code.

The jury returned verdicts finding both defendants guilty of burglary in the second degree. Motions of defendants for a new trial were denied; proceedings were suspended, and both were granted probation for five years upon conditions, among others, that each spend the first 60 days of his probationary period in the county jail. Defendant Miller, hereinafter referred to as appellant, has appealed from the order granting probation and the order denying his motion for a new trial. (Defendant Carnes apparently has not taken an appeal.)

Viewing the record in the light most favorable to the People (People v. Caritativo, 46 Cal.2d 68, 70, 292 P.2d 513), it discloses that on the evening of July 18, 1958, the dental laboratory of Floyd E. Wolfsen, at 513 South Western Avenue, Los Angeles, was broken into. Mr. Wolfsen was notified of this burglary between 1:30 and 2:00 o'clock the next morning (July 19th) by the police. Upon his arrival at his place of business he found that some holes had been drilled in the back door and the door had been 'broken down.' A cabinet in his private office had been pried open and most of the drawers in his desk were open and the papers in disarray. There were missing from his desk a book of 'green stamps' and an envelope bearing Mr. Wolfsen's name which contained some loose 'green stamps.' In addition to these items, Mr. Wolfsen observed that a General Electric FM radio was also missing; a few days later it was discovered that a chamois skin, a Los Angeles Street Guide, a half-full bottle of Scotch whiskey, and a 'couple of pair of pliers or tongs' were also missing.

At approximately 11:30 p. m., on the night of the burglary, Officers Bolander and Downey, of the Beverly Hills Police Department, were patrolling northbound on Doheny just south of Wilshire Boulevard. This particular block on Doheny was illuminated with the 'latest type mercury lights.' The officers' car was painted with the black and white markings of a police vehicle, and a pair of red lights and a siren were mounted on its top. As the officers proceeded northward Officer Bolander observed two men in a vehicle approaching them southbound on Doheny at a distance of approximately 100 yards. The men appeared to be looking at the police car and immediately thereafter they made a left turn into an alley. Officer Bolander thereupon turned on the red lights and followed the car down the alley, a distance of about 350 feet, where it made another left turn at the next street. The car was then stopped by the police officers through the use of their spotlight. Officer Bolander approached the vehicle on the driver's side, while Officer Downey went to the passenger side. As they did so, appellant Miller, the driver, and Carnes opened the car doors and stepped out on the street. Officer Bolander questioned Miller about his destination and the ownership of the car. Miller indicated that the car was his and that he was en route to visit some friends in the vicinity.

Officer Bolander next turned his attention to the car, and, while on the outside, 'shined' his flashlight 'in the back seat.' On the floor of the back seat Officer Bolander observed a radio (subsequently identified as the one missing from the Wolfsen laboratory), a brace and bit, and a length of half-inch rope. Officer Bolander also observed a 'pry-bar' between the door and the front seat on the driver's side, and on the back seat he saw a flashlight and a pair of white cotton gloves. After observing the above-mentioned articles in the car, Officer Bolander asked Miller what purpose he had in carrying these tools. Miller replied that he was a typewriter repairman and that he used them in his business. Miller and Carnes were then advised that they were under arrest for 'suspicion of burglary.' Officer Bolander then obtained the car keys from Miller and conducted a search of the vehicle. In the glove compartment, which was locked, the officer found a white-handled 7.65 millimeter automatic pistol, which was of German make. Another pry-bar and a second pair of gloves were found under the front seat; also, a 'half a bottle' of Scotch was found on the right front floor. An Atlas of Los Angeles County, an envelope containing some green stamps, and a book of green stamps were found on the front seat of the vehicle. (The envelope and the green stamps therein were identified as being those missing from the Wolfsen laboratory.) In thus searching their automobile the police were acting without an arrest or search warrant.

Appellant was further questioned at the scene of the arrest by Officer Bolander regarding the articles found in his car. He claimed ownership of the radio and the tools but denied any knowledge of the green stamps found on the front seat and the automatic pistol in the glove compartment. At this time, apparently, defendant Carnes was questioned only about the gun and green stamps. He denied knowledge of either of them. Miller and Carnes were transferred to the Beverly Hills Police Station and there separately interrogated by Captain Smith in the presence of Officer Downey. Appellant was interrogated about the materials found in his car. He stated that he knew nothing about any of these things and that he had found them in his car, which the had parked behind a building near Western Avenue, when he and his friend had returned from having a drink. Officer Downey reminded appellant that he had previously claimed ownership of the tools and the radio. Appellant then stated that some of the tools were his, but that he didn't know anything about the radio. Carnes denied any knowledge of the items found in the automobile. He stated that he and appellant had parked, and had gone to get a drink, and that when they returned the items were in the car.

Miller and Carnes were again questioned during the afternoon of July 19th by Officer Stevens of the Los Angeles Police Department. Miller at first denied any knowledge of the articles found in his car but upon further questioning stated that he and Carnes har drilled some holes in the rear door of Wolfsen's establishment and that they entered and took the radio, the green stamps and a chamois skin. Miller denied any knowledge of the gun found in the glove compartment of his car. Carnes, upon being questioned, stated that he knew nothing about the articles in the car other than that he and Miller had found them 'piled' in the car when they returned from having a beer near where he worked at 5th and Western. He also denied any knowledge of the gun found in the glove compartment.

As part of the police investigation, chips of wood found at the Wolfsen laboratory beneath the drill holes in the door were turned over to the police laboratory and there compared with a chip of wood discovered in a crevice on the trailing edge of the brace and bit found in the car driven by Miller, and also compared with sample chips of wood produced by using the brace and bit on similar wood. Paint on the chip taken from the brace and bit was of the same color and texture as that found at the Wolfsen laboratory, and it was the opinion of the police chemist that this paint had been made by the same manufacturer. Comparing the markings made by the cutting edge of the brace and bit on a sample chip of wood with the markings on one of the chips of wood found at the Wolfsen laboratory caused the police expert to conclude that the same tool made both chips.

Both Miller and Carnes took the stand in their own behalf. Their versions of the events on the night of July 18th were sharply conflicting. According to appellant's version, he went to Carnes' place of residence some time after 7:45 that evening. He and Carnes had a beer and watched television for about an hour and Carnes then suggested that they have a drink, stating that he had some tools he wanted to drop off at his shop. Carnes 'threw' some tools into appellant's car on the floor behind the passenger seat and they drove to the place where Carnes worked and parked in his regular place behind the shop because they could not find available parking on the street. As they parked, according to appellant, Carnes produced a gun from his pocket and informed appellant that he thought he would pull a stickup. Appellant objected, saying that he wanted nothing to do with a gun, and that at his suggestion the gun was locked in the glove compartment. Thereafter he and Carnes went to a bar across the street and had a few drinks. They left the bar at approximately 11:00 o'clock and returned to the car. Carnes took the tools from the car and told appellant to wait a minute, that he was going to drop them off at his shop. Carnes went around a corner of the building and appellant remained in his car. When Carnes did not return for quite some time, appellant went to look for him. Rounding the corner of the building, appellant noticed an open door and through the door he saw a light moving around in the front of the building. Appellant then called out to Carnes, who came running back and told him to be quiet and stay...