People v. Eskew

• Decision Date: 27 July 1962
• Docket Number: Cr. 7931
• Citation: 23 Cal.Rptr. 466,206 Cal.App.2d 205
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Larry Thomas ESKEW, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 466

23 Cal.Rptr. 466

206 Cal.App.2d 205

The PEOPLE of the State of California, Plaintiff and Respondent, v. Larry Thomas ESKEW, Defendant and Appellant.

Cr. 7931.

District Court of Appeal, Second District, Division 4, California.

July 27, 1962.

Rehearing Denied Aug. 23, 1962.

Maurice Harwick, Los Angeles, for defendant and appellant.

Stanley Mosk, Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Justice.

In an information filed by the District Attorney of Los Angeles County, defendant was charged with three counts of burglary in violation of Penal Code, section 459. Defendant pleaded not guilty. After a jury trial defendant was found guilty on all three counts. Motion for a new trial was denied, and a probation report was ordered. Defendant, being under the age of eighteen, was committed to the California Youth Authority for the term prescribed by law. Defendant appeals from the judgment and order denying the motion for a new trial.

During the month of January 1961, three coin-operated self service laundries in the Los Angeles vicinity were burglarized. William Gandy testified that on the evening of January 26, he, the defendant, and another person by the name of Smotherman, were just riding around in an automobile when 'I brought up the idea of getting some money. * * * all of us needed money and none of us had a job, so we went to the laundromat * * * the Paramount.' Gandy first entered the laundromat and broke into the coin machine. Defendant stood around outside of the laundromat and entered the building shortly after Gandy was successful in breaking into the coin box. Smotherman remained outside in the automobile while the burglary was being committed. The same evening the trio proceeded to the Su-Leen Laundry where Gandy broke into the coin machine and took out some money. The proceeds obtained from this burglary were divided between the three young men. On the evening of January 29, Gandy met defendant at his home and they walked to a laundromat which was a mile or so away. While defendant waited outside, Gandy entered the building and broke open the coin boxes, taking approximately $130.00. Gandy testified that the defendant did not share in the proceeds of this burglary.

Defendant did not call any witnesses, nor did he testify in his own behalf.

Defendant's first contention is that the evidence is insufficient as a matter of law to sustain the conviction. Defendant was found guilty of all three burglaries, each of which was charged in a separate count. The testimony clearly showed that defendant was present with William Gandy when each of the three burglaries was committed. It was testified that defendant shared in the proceeds of one of the burglaries.

Evidence which would support a finding that defendant aided and abetted in the commission of the three burglaries is sufficient to sustain the conviction. 'All persons concerned in the commission of a crime, * * * whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging * * * to commit any crime * * * are principals in any crime so committed.' (Penal Code, § 31)

"The presence of one at the commission of a felony by another is evidence to be considered in determining whether or not he was guilty of aiding and abetting; and it has also been held that presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred.' [Citations.] 'Where two or more persons enter upon a common undertaking, whether by prearrangement, or entered into on the spur of the moment, and that undertaking contemplates the commission of a criminal offense, each of the parties to the undertaking is equally guilty of the offense committed whether he did an over act or not.' [Citations.]' (People v. Moore, 120 Cal.App.2d 303, 306, 307, 260 P.2d 1011, 1013.

There can be no question but that the evidence was sufficient for the trier of fact to conclude that defendant aided and abetted in the commission of the burglaries.

Defendant's second contention is that there is no evidence to corroborate the...