People v. Clark

• Decision Date: 30 December 1953
• Docket Number: Cr. 2913
• Citation: 265 P.2d 43,122 Cal.App.2d 342
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. CLARK.

Page 43

265 P.2d 43

122 Cal.App.2d 342

PEOPLE v. CLARK.

Cr. 2913.

District Court of Appeal, First District, Division 1, California.

Dec. 30, 1953.

Rehearing Denied Jan. 14, 1954.

Hearing Denied Jan. 27, 1954.

George A. Sears, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., David K. Lener, Deputy Atty. Gen., for respondent.

PETERS, Presiding Justice.

Defendant was charged with burglary, and with a prior 1938 burglary conviction. At the trial he admitted the prior burglary charged, and also admitted that in 1945 he had been convicted of, and served a term for, a felony under the Deadly Weapons Act. At the trial, although offered the services of the public defender, defendant insisted on representing himself, but the trial court directed the public defender to remain at the trial as an observer. The jury found defendant guilty of second degree burglary. He appeals from the judgment entered on the verdict. On this appeal, at his request, he is represented by court appointed counsel.

The record shows the following: At about 10 p. m. on September 8, 1952, A. D. Peck parked his automobile on Golden Gate Avenue near Leavenworth in San Francisco. The two doors of the automobile were locked. He returned to the car the next morning at 7 a. m. He found one of the wing windows broken and both doors unlocked. He also discovered that a Clarus camera, the serial number of which he knew, a gadget bag made for him in Australia containing miscellaneous camera equipment, and with his name printed on it, a Fada radio, easily identified because of the color of the case and because of two holes drilled therein, and a screwdriver, were missing. He reported the theft to the police and gave them a description of the stolen property.

On the morning of the same day, September 9, 1952, Inspectors Lang and Short of the pawn shop detail observed a camera and a gadget bag in the window of a pawn shop on Sixth Street, in San Francisco. Investigation disclosed that the camera had the serial number of the camera reported stolen by Peck, and the gadget bag had Peck's name printed on it. The proprietor stated that he had purchased the articles that morning about 9:30 from defendant for $5, and that defendant had given him the false name of Jack Hines and a false address, but that he knew defendant's real name and address, which he gave to the officers. There is evidence that the camera and attachments were worth over $100.

The officers went to the address given them by the pawn shop proprietor, which was that of a hotel located in the same block as the pawn shop. The defendant was not there, but the officers were admitted to defendant's room by the manager. Among some 87 articles in the room they found a screwdriver similar to the one reported stolen, and a Fada radio. The radio was later positively identified by Peck as the one stolen from his automobile. The screwdriver was similar to the one taken from Peck's car. While the officers were still in the room defendant returned. He then readily admitted, and he testified at the trial, that he had sold the camera and gadget bag to the pawn shop proprietor, but he denied having stolen them. He told the officers that on that very morning around 9 a. m. ¹ he was standing near the pawn shop when a friend, whom he did not then further identify, drove up in a green Oldsmobile, gave him the camera and gadget bag, and, after assuring defendant that they were not 'hot,' asked him to sell them for him. This he did, but gave a fictitious name because he was suspicious of the transaction. At the trial he told the same story, adding to it that this friend had suggested the fictitious name and address of Jack Hines, and further identified this friend as one Robert Romo, who was not produced, whose absence was not explained, and whose address or whereabouts were not given.

The defendant testified at the trial that one of the officers had taken $10 from him, paid a taxi driver who was waiting for defendant, and kept the change. The officer testified that he took $1 from defendant which he paid to the taxi driver. Defendant also charged during the trial that many other articles besides the radio and screwdriver here involved had been removed from his room by the officers, and broadly implied something was wrong about this because neither he nor the hotel manager had been given a list of the removed articles.

The two officers testified that they made a list of the 87 pieces of property in defendant's room. In addition to the Fada radio and screwdriver, already mentioned, there were three cameras, another radio, seven wallets, ten other screwdrivers, two files, three pairs of pliers, three electric irons, four suitcases, ten pairs of slacks, five jackets or sport coats, two topcoats, a key ring with 75 or more miscellaneous keys on it, and other items. All of these, in defendant's presence, were removed from the room. The officers made an official list of the removed property and delivered the articles to the police property clerk.

There is also evidence that defendant, before being taken to jail, offered to 'do business' with one of the officers, and told the other that he was going to beat the charge 'even if I have to pay you off.'

At the trial defendant testified that the Fada radio was not found in his room, implying that it had been planted there by the officers. In addition to explaining how he had come into possession of the camera and gadget bag, he offered an alibi. He produced a witness, then under arrest, James Parker by name. Parker testified that about 5 p. m. of September 8, 1952, he had picked up defendant in a borrowed automobile and, at defendant's request, driven him to Stockton; that both men spent the night in Stockton unsuccessfully looking for a girl friend of defendant, and then returned to San Francisco, arriving shortly after 9 a. m. on September 9, 1952. On cross-examination Parker admitted two prior felony convictions of burglary. Parker's testimony was corroborated by defendant. Admittedly this Stockton alibi was not told to the officers at the time of arrest or later, first making its appearance at the trial.

The evidence supports the judgment. Appellant contends that the only evidence against him is the possession of the recently stolen property, and correctly contends that such fact alone will not support a conviction of burglary. But it is equally true that possession of recently stolen property plus corroborating circumstances such as acts, conduct or declarations of the accused tending to show guilt, will support such a conviction. People v. Russell, 34 Cal.App.2d 665, 94 P.2d 400; People v. Carroll, 79 Cal.App.2d 146, 179 P.2d 75; People v. Owens, 79 Cal.App.2d 290, 179 P.2d 401; People v. Smith, 98 Cal.App.2d 723, 221 P.2d 140. Of course, what must be shown in addition to the fact of possession of recently stolen property varies with the circumstances of each case, and the weight to be given to such circumstances is generally for the jury. Here defendant about 9:30 a. m. on September 9, 1952, sold two articles that had been stolen sometime after 10 p. m. the night before. These articles, although worth over $100, were sold for $5. Defendant, in making the sale, gave a false name and address. When arrested his explanation that some unidentified friend, first identified at the trial but who was not then or ever further identified or produced, gave him the articles to sell, together with the alibi of the Stockton trip, first told at the trial by defendant and a twice convicted felon, are also suspicious circumstances. The conflicting times given as to when this friend delivered the articles is another suspicious circumstance. The offer to 'do business' with the officers and to buy them off were matters that could be considered by the jury as indicating a consciousness of guilt. The corroborating circumstances, together with the admitted fact of possession of recently stolen property, are amply sufficient to sustain the conviction.

The trial court, however, failed to instruct the jury that the unexplained possession of recently stolen property would not alone support a finding that the possessor was guilty of burglary. While defendant made no such request for such an instruction, his counsel now contends that the court should have given it sua sponte, and that the failure to do so was prejudicial error. Among other cases cited to support his contention is People v. Smith, 98 Cal.App.2d 723, 221 P.2d 140. That case undoubtedly held that the failure of the trial court to give such an instruction sua sponte was error. Based on that case the Attorney General concedes error in this respect, but contends that such error was not prejudicial.

People v. Smith, supra, supports the contention of the Attorney General that the admitted error was not prejudicial. In that case a typewriter was stolen from a county building. The day after the theft, defendant sold the typewriter to the proprietor of a tavern,...