People v. Harris

• Decision Date: 07 October 1968
• Docket Number: Cr. 462
• Citation: 266 Cal.App.2d 426,72 Cal.Rptr. 423
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Sherman HARRIS, Defendant and Appellant.

Page 423

72 Cal.Rptr. 423

266 Cal.App.2d 426

The PEOPLE, Plaintiff and Respondent, v. Michael Sherman HARRIS, Defendant and Appellant.

Cr. 462.

Court of Appeal, Fifth District, California.

Oct. 7, 1968.

Rehearing Denied Oct. 30, 1968.

Hearing Denied Dec. 4, 1968.

Donald B. Cantwell, Modesto, under appointment by Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., by Roger E. Venturi and Gordon F. Bowley, Deputy Atty. Gen., Sacramento, for respondent.

CONLEY, Presiding Justice.

The defendant, Michael Sherman Harris, was accused of burglary in Count I of the information and of receiving stolen property in Count II. The jury found him guilty of burglary in the first degree as to the first charge, but not guilty of receiving stolen property.

The efforts of his counsel on appeal are concentrated on two contentions: (1) that the proof does not establish that the burglary was of the first degree, and (2) that the trial court committed prejudicial error by admitting the testimony given at the preliminary examination of an absent witness, William Strickland.

Counsel for the defendant does not argue that the evidence is not sufficient to justify the conviction of burglary. This position concerning the commission of the crime is fully justified by the evidence. As usually happens in burglary prosecutions, the state necessarily depended upon indirect evidence with respect to the guilt of the defendant, but the record is so convincing in this respect that there can be no real doubt that the jury was completely justified in concluding that Harris was guilty of burglary.

While mere unexplained possession of stolen property is not alone sufficient to justify conviction of burglary (People v. Murphy, 91 Cal.App. 53, 266 P. 374; People v. Frahm, 107 Cal.App. 253, 290 P. 678), it is well established that the possession of recently stolen property is incriminating, and in such circumstances there need be only slight corroboration tending to show a defendant's guilt to warrant conviction (People v. DeLeon, 236 Cal.App.2d 530, 533, 46 Cal.Rptr. 241; People v. Citrino, 46 Cal.2d 284, 288--289, 294 P.2d 32; People v. McFarland, 58 Cal.2d 748, 754, 26 Cal.Rptr. 473, 376 P.2d 449). In this connection, the failure of the defendant to establish that he had honestly obtained the property in question is itself a strong circumstance tending to prove his guilt. (People v. DeLeon, supra, 236 Cal.App.2d 530, 46 Cal.Rptr. 241; People v. Guerrero, 247 Cal.App.2d 687, 56 Cal.Rptr. 7; People v. Davis, 235 Cal.App.2d 214, 45 Cal.Rptr. 297; People v. Holquin, 203 Cal.App.2d 485, 21 Cal.Rptr. 435; People v. Beverly, 200 Cal.App.2d 119, 19 Cal.Rptr. 67; People v. Brown, 187 Cal.App.2d 651, 9 Cal.Rptr. 836; People v. Lanza, 186 Cal.App.2d 860, 9 Cal.Rptr. 161.)

In People v. Holquin, supra, 203 Cal.App.2d 485 at page 487, 21 Cal.Rptr. 435 at page 437, it was stated by the court:

'While mere possession of stolen property is not sufficient to connect the possessor with the commission of a burglary it is a circumstance which requires a reasonable explanation of how possession was acquired and that it was honestly obtained. Unsatisfactory or false explanation may be sufficient corroborative evidence to connect the possessor with the theft.'

That burglary was committed by someone was amply proven. A little eight-year-old girl, Ann Strickland, whose family were neighbors of Mr. Ballantyn, was given permission by him to enter his garage daily during his vacation, in order to feed the family cats. Late Friday afternoon of March 24, 1967, Ann went over to the Ballantyn house on her mission but came back home in a hurry. She told her father that she was afraid to go into the Ballantyn house because some of its doors were open. When the Ballantyns came home several days later, they saw at once that the house had been rifled; a clock had been taken from the wall, and various articles of personal property were missing; other objects were strewn about the floors and someone evidently had committed a burglary in the house.

The record shows, without question, that, within a few days after the crime, the appellant had possession of four guns which had been stolen from a closet in the Ballantyn house.

Mr. Ballantyn, as a witness, described the four guns which were stolen from his home as follows: the first two were a Mossberg .22 caliber rifle and a 250,3000 Savage rifle, which he recognized at the trial by the notches he had marked on the gun and which he said had been purchased by his father from the Outdoorsman Sport Shop of Idaho Falls, Idaho, in 1951. The third gun was a Browning automatic .22 caliber rifle, which had been bought in 1964 from Lacque & Sons Sporting Goods Store in Modesto. Mr. Ballantyn had a sales receipt for the Browning .22 caliber rifle which listed the serial number as 3T75394. He was also able to identify the Browning rifle at the trial. The fourth gun stolen from the house was a 16 guage Browning automatic; the butt plate was half broken where it had been set down rather roughly, and it was a shotgun made in Belgium in 1921--22.

Shortly after the commission of the theft, the defendant appeared at the home of Sidney Moore in Riverbank accompanied by several young men and sold him a total of six guns, including three described above, which had been stolen during the burglary. The sale was made in the presence of three Riverbank friends of Mr. Moore's, whose names were Odom, Mathers and Green; a bill of sale written out by Mr. Moore's wife was witnessed by his three friends. The guns were sold to Moore for $75 in cash.

Appellant failed satisfactorily to explain his possession of the stolen weapons. He took the stand in his own behalf and testified that he had traded a 1955 Mercury automobile, for which he had originally paid $125, to a man named Larry DeCamp for the seven guns. He said he did not know the exact address of Larry DeCamp and said that he was not well acquainted with him, but had only met him through a friend of his. There was no DeCamp at the trial, no bill of sale purporting to come from him, and apparently there had been no effort to bring him to the trial on behalf of the defendant. The appellant stated on the stand that he traded with DeCamp on the 29th day of March, which was some four days after he, in fact, sold the weapons to Mr. Moore.

Harris further testified that he had owned the Mercury, which he said he traded for the guns, for a little over three months, but that he did not remember the name of the party from whom he had purchased the 1955 car. He said, however, that when he bought the automobile he received the pink slip, signed by the owner and his wife, and the white registration slip with the car, and that he paid the sum of $18 for a license but never transferred the ownership of the automobile into his own name, even though at the time that he first possessed it he thought he would keep the car. He said the the Mercury was still registered in the name of the person from whom he bought it, and that he transferred the automobile to Larry DeCamp in the same way in which he had obtained it, that is, he just handed him the signed pink slip he received from the prior owner and his wife. It will be noted that, while appellant said he bought the Mercury for $125, he sold three of the guns which were stolen and three more guns, all of which he claimed to have gotten from DeCamp, for $75; if true, this indicated a rather substantial loss, but he did not say that he tried to sell the weapons to anyone other than Mr. Moore when the latter offered only $75 for them.

The evidence at the trial also showed that, shortly after the burglary, Harris sold one of the other stolen guns to Robert Lee Stephans. At that time, he told Stephans that his wife had given him the weapon as a present, but he testified that he had given a 'mini-bike' and $35 in cash for the shotgun; the trade by which he received that gun took place, he said, in back of the airport. He did not know the name of the party from whom he obtained the shotgun.

The evidence of the defendant relative to how he obtained the weapons is incredible. Such testimony, or even a failure to produce sufficient evidence to explain reasonably how the stolen property was obtained, would be sufficient in the circumstances to sustain a conviction for burglary (People v. Davis, supra, 235 Cal.App.2d 214, 45 Cal.Rptr. 297; People v. Ford, 234 Cal.App.2d 480, 44 Cal.Rptr. 556). The sale of stolen property for an inadequate price has been held to be sufficient corroborative evidence to support a burglary conviction. (People v. Conrad, 125 Cal.App.2d 184, 270 P.2d 31.)

The record is thus ample to sustain the appellant's conviction.

Counsel for Harris does, however, contend that the record is not adequate to support the finding of the jury that the crime was burglary of the first degree. In this connection, the mere fact that unloaded guns were stolen from the Ballantyn home does not establish the crime as burglary of the first degree. Section 460 of the Penal Code states that a first degree crime of burglary is committed by one '* * * who while in the commission of * * * (a) burglary (of an inhabited dwelling house in the daytime or nighttime) arms himself with a deadly weapon, * * *' but this rule does not apply to a burglar who steals an unloaded firearm and carries it away (People v. Black, 73 Cal.App. 13, 29, 238 P. 374). Consequently, the first degree charge can only be supported upon the theory that the burglary of an inhabited dwelling house was committed during the nighttime. The temporary absence of the inhabitants of a home does not cause an inhabited residence to lose its character as such. (People v. Allard, 99 Cal.App. 591, 592, 279 P. 182; People v. Tittle, 258 A.C.A. 618, 624, 65 Cal.Rptr. 576). The only evidence in the record possibly indicating whether the burglary was committed at night or in the daytime was that of the witness...