People v. Henderson

• Decision Date: 21 March 1963
• Docket Number: Cr. 3378
• Citation: 214 Cal.App.2d 290,29 Cal.Rptr. 297
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence HENDERSON et al., Defendants and Appellants.

Page 297

29 Cal.Rptr. 297

214 Cal.App.2d 290

The PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence HENDERSON et al., Defendants and Appellants.

Cr. 3378.

District Court of Appeal, Third District, California.

March 21, 1963.

Hearing Denied May 14, 1963.

Jack Lee Burford, Sacramento, under appointment by Third Dist. Court of Appeal, for appellants.

Stanley Mosk, Atty. Gen., by Edward Hinz, Jr., Deputy Atty. Gen., Sacramento, for respondent.

SCHOTTKY, Justice.

Clarence Henderson, John Williams and John Auls were charged by information with a violation of section 591 of the Penal Code, it being alleged that they 'unlawfully and maliciously took down and removed a telephone line.' After a trial by jury they were all found guilty as charged and judgments were pronounced. They have appealed from the judgments.

Appellants do not question the sufficiency of the evidence but contend the judgments should be reversed because of several asserted prejudicial errors relating to instructions. Before discussing these contentions, we shall give a brief summary of the evidence as shown by the record.

On May 14, 1962, James E. Taylor, a train dispatcher for the Sacramento Northern Railway, was on duty between 4 p. m. and midnight. At 9:36 p. m. he heard a loud noise on the west dispatcher's circuit between Sacramento and Vacaville, indicating the line had been grounded. The noise stopped at 9:38 p. m. At 9:40 p. m. Mr. Taylor telephone Mr. Sant, general foreman, and Mr. Radcliff, special agent, of the railway and told them he suspected the line had been cut. Mr. Radcliff notified the sheriff's office of Yolo County. Mr. Sant and Mr. Radcliff proceeded to the Arcade Crossing of the Sacramento Northern Railway.

About 10:15 p. m. Deputy Sheriffs Martin and Leinberger of Yolo County stopped the three defendants coming out of the Yolo Bypass in a 1949 Dodge at the Arcade Crossing on the only exit road. The car was owned by the defendant Williams and he was driving. The deputies observed with the use of flashlights a set of pole climbers, a pair of wire cutters and a pair of pliers in the car. A search of the trunk disclosed three rolls of wire. Defendant Williams stated: 'No, we didn't take that wire, we didn't cut that wire down.' A pair of white gloves was found in the car and a black glove was found in defendant Henderson's pocket. All three defendants claimed they found the wire and pole climbers while driving out of the Yolo By-pass. Defendant Williams stated to Deputy Leinberger that he owned the white gloves, the wire cutters and the pliers.

Messrs. Sant and Radcliff drove along the Sacramento Northern Railway line and discovered where it had been cut. Mr. Sant broke off three ends from the hanging wire.

The wire cutters, pliers, three wire samples and three rolls of wire found in the car of defendant Williams were taken to the Bureau of Criminal Identification and Investigation. The pair of pliers and the wire cutters had copper smears on the cutting face, indicating that they had both cut copper wire. Mr. Harry Johnson, a criminologist with the Bureau of Criminal Identification, testified the wire cutters had cut one strand of the copper wire found in the car of defendant Williams. The pliers had also cut copper wire, but Johnson could not determine what wire. Other evidence will be referred to hereinafter.

At the trial Henderson did not testify. Defendant Williams testified he saw the wire, pole climbers, wire cutters and white gloves beside the road and all three defendants put the articles in the car. He testified defendant Auls twisted the wire with the pliers. The court gave Instruction Number 20 which in substance stated that admissions by one defendant are not admissible against a codefendant.

The appellants first contend that the court committed prejudicial error in failing to instruct the jury on the use of circumstantial evidence.

It is the duty of the court in a criminal case to give of its own motion instructions on the general principles of law pertinent to such cases where they are not proposed or presented in writing by the parties themselves. (People v. Warren, 16 Cal.2d 103, 104 P.2d 1024.) Instructions must be given relating to the facts of the case and upon matters vital to a proper consideration of the evidence. (People v. Yrigoyen, 45 Cal.2d 46, 286 P.2d 1.) 'In a criminal case where circumstantial evidence is substantially relied upon for proof of guilt it is obvious that 'instructions on the general principles of law pertinent to such cases' necessarily include adequate instructions on the rules governing the application of such evidence.' (People v. Bender, 27 Cal.2d 164, 175, 163 P.2d 8, 15.) The court in the Bender case at page 175, at page 15 of 163 P.2d approved the statement in 8 California Jurisprudence, section 405, page 371, that in every criminal case where circumstantial evidence is relied on to convict, the trial court of its own motion should give an instruction embodying the principle 'that, to justify a conviction, the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.'

Upon the oral argument the Attorney General conceded that the evidence in the case at bench was largely circumstantial. The charge against appellants was that they took down and removed a telephone line, and the record shows that the People relied entirely upon circumstantial evidence to show that any of the appellants climbed the pole and took down the telephone line. No witness testified that he saw anyone take down the wire; the People only showed that the appellants were arrested in the immediate vicinity of the crime immediately after its perpetration, and that at that time they had possession of a set of pole climbers, pliers, wire cutters, gloves and three rolls of wire. The only direct testimony linking the appellants to the crime was that of the arresting officer concerning the articles found in the possession of the appellants.

In People v. Yrigoyen, 45 Cal.2d 46, at page 49, 286 P.2d 1, at page 3, the court said:

'* * * In accordance with this rule we declared in People v. Bender, 27 Cal.2d 164, 174 et seq., 163 P.2d 8, that the court on its own motion should have given an instruction embodying the principle that to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion. See also People v. Koenig, 29 Cal.2d 87, 93, 173 P.2d 1. It is true that in the Bender case proof of guilt was entirely circumstantial, whereas in the present case there was direct evidence that defendant issued the check without sufficient funds in or credit with the bank, and circumstantial evidence was relied upon to show his criminal knowledge and intent. However, in the Bender case, it is stated that where circumstantial evidence is substantially relied upon for proof of guilt, adequate instructions on the rules governing the application of such evidence must be given. 27 Cal.2d at p. 175, 163 P.2d at p. 15. And it has been held that the instruction must be given where criminal knowledge is shown only by circumstantial evidence. People v. Candiotto, 128 Cal.App.2d 347, 355-356, 275 P.2d 500.'

We believe that the court erred in failing to give to the jury the standard instruction on circumstantial evidence, but before discussing the effect of such failure we shall discuss the further contentions of appellants.

The appellants next contend that the court committed prejudicial error in giving Instruction Number 6 which reads:

'The mere fact that a person was in possession of stolen property soon after it was taken is not enough to justify his conviction of theft. It is, however, a circumstance to be considered in connection with other evidence. To warrant a finding of guilty there must be proof of other circumstances tending of themselves to establish guilt.

'In this connection in the case of each defendant you may consider said defendant's conduct, his false or contradictory statements, if any, and any other statements he may have made with reference to the property. If a person gives a false account of how he acquired possession of stolen property this is a circumstance that tends to show guilt. If he has a reasonable opportunity to show that his possession was honestly acquired but refuses or fails to do so, this is a circumstance that tends to show his guilt.'

Sections 1093 and 1127 of the Penal Code 'require that the trial court's charge to the jury must be applicable and confined to the 'points pertinent to the issue,' and to such matters of law as may be necessary for the information of the jury. This being so, the charge of the trial court may not,...