People v. Kerns

• Decision Date: 24 June 1955
• Docket Number: Cr. 5346
• Citation: 285 P.2d 81,134 Cal.App.2d 110
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John Hayden KERNS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 81

285 P.2d 81

134 Cal.App.2d 110

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Hayden KERNS, Defendant and Appellant.

Cr. 5346.

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

June 24, 1955.

James K. Turner and Ernest L. Graves, Long Beach, for appellant.

Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

Appellant was convicted of burglary in the second degree. Also, he was found to have had two prior felony convictions, to wit, robbery and forgery. His motion for a new trial having been denied, he now seeks a reversal of both judgment and order on the grounds of error in admitting testimony and in giving an erroneous instruction.

Mrs. Harvey and Mrs. Streeter, sisters, closed their store in Long Beach about five p. m. and securely locked the doors. About 11:15 p. m., Miss Mershimer who lived near the store was on her way home accompanied by a girl friend. She observed appellant with some keys trying to gain entrance into that establishment. He soon despaired of success with his gentle approach, kicked out the window and crawled in. Thereupon, the observant girls called police who promptly arrived and took the housebreaker in charge. About eight minutes after he had entered, the officers brought him from the rear to the front door. There Miss Mershimer recognized him as the person she had observed break the window. She had seen him often in the vicinity and knew him as the brother of a girl friend who resided just across the street from the store. The testimony of Officer Hainley who found appellant inside the store, observed the broken glass, heard the deceptive story of the culprit and his refusal to answer questions that were harmless for an innocent man was sufficient when added to that of Miss Mershimer to warrant a conviction. But in addition, appellant took the stand and reeled off a bizarre narrative of having imbibed liquor at several bars, met a woman named Ardis with whom he drank beer at three saloons. He had seen her near the Harvey store while he roomed at his sister's home. She was 35 or 36 years of age, five feet, four inches tall, with dark hair, prematurely gray. He testified that he sat for a while in Ardis' car; that she stated she was leaving for Nevada that night to get a divorce, but had to pick up a few things at the 'clothing exchange store' of herself and her husband before she left; that she must go to her husband's place to get the keys. He testified that she left and soon returned, saying that she could not get the keys, but must get two envelopes in the store, two dresses of her own and would appellant assist her in getting them. He testified that they drove to a point near the Harvey store and parked; that Ardis said it would be all right for him to break in; that while Ardis remained in the car across the street he broke the window and crawled through to the inside; that he tried to open the door; could not; searched for the envelopes containing receipts she desired. He never asked her name, nor did she ask his.

After testifying that he had been convicted of robbery and forgery, he was asked by the deputy district attorney:

'Q. Do you recall back in 1949 telling the officers about a Marie that was with you when you broke the window of another store? A. No.

'Q. Well, to refresh your recollection, this officer sitting here to my left, Inspector Wishon, you recall him do you not? A. Yes.

'Q. You have talked to him before, have you not? Don't you recall back in 1949 when he was questioning you about breaking a window at a place over at 3301 Eleventh in Long Beach and you told him that you had gone by there with a girl named Marie and that she had vanished when the police arrived? Do you remember that story? A. No, I don't.'

To the first of such questions, appellant objected on the ground that it was irrelevant. But it was not irrelevant. Inspector Wishon had testified concerning the circumstances of appellant's arrest for trespass in February 1949 when appellant had said that prior to such arrest he had picked up a girl named Marie, in the Cinnabar Cafe; that they had engaged in intercourse back of that establishment; that when they were frightened, Marie ran away while he was caught by the officers; that she was 28 to 30 years of age, about five feet, six inches tall, weighed 128 pounds, had black hair. Wishon further testified that appellant in conversation with him on October 4, 1954, gave a description of the woman who had had him enter the store for her, said she was 28 to 30 years of age; five feet, six inches tall, dark hair and weighed 128 pounds. Appellant assigns as prejudicial the court's overruling his objections to such questions, and contends that such testimony did not come within exceptions to the general rule that prior unlawful acts of an accused are not admissible to prove his guilt of the act for which he is on trial; that they did not tend directly to establish the crime alleged or show intent or a common scheme embracing both offenses; that the evidence as to the previous incident must be identical with or very similar and close in time to the act alleged in the matter at bar.

There are two answers to such contentions. (1) The court read an instruction ¹ limiting the application of the testimony objected to. It is observed that the jury were forbidden to infer therefrom a distinct offense but the evidence was received for such bearing as it might have on the question: 'whether the defendant is innocent or guilty of the crime charged against him in this action.' (2) It is the law that when the conduct of an accused person in a previous offense bears such similarity in significant respects to his behavior at the time of the commission of the crime under investigation 'as naturally to be explained as caused by a general plan, the similarity is not merely coincidental but indicates that the defendant's conduct was directed by design.' Remoteness of prior offense affects only the weight and not its relevancy. People v. Burns, 109 Cal.App.2d 524, 537 et seq, 241 P.2d 308, 242 P.2d 9; People v. Rickson, 112 Cal.App.2d 475, 479, 246 P.2d 700. Evidence which merely tends to show an attempt to commit other offenses may be received to prove a common scheme or plan 'even though it falls short of proving the corpus delicti of such other offenses.' People v. Lisenba, 14 Cal.2d 403, 431, 94 P.2d 569, 583.

In the light of such authorities, it appears without extended suasion that appellant's story to the officer in 1949 is so nearly identical with that related after his apprehension in 1954 in attempting to exculpate himself from the burglary charge that the inference is irresistible that he had one permanent excuse for explaining his behavior. He had one woman to hide behind; in each...