People v. Kittrelle

• Decision Date: 05 February 1951
• Docket Number: Cr. 4502
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. KITTRELLE.

Page 38

227 P.2d 38

102 Cal.App.2d 149

PEOPLE v. KITTRELLE.

Cr. 4502.

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

Feb. 5, 1951.

Rehearing Denied Feb. 14, 1951.

Hearing Denied March 5, 1951.

Sam Houston Allen, Los Angeles, for appellant.

Fred N. Howser, Atty. Gen., Howard S. Goldin, Deputy Atty. Gen., for respondent.

WILSON, Justice.

Defendant was charged by informations with two crimes of burglary. In count one of the first information he was accused of having entered the house of one Roy Moye with the intent to commit theft and in count two thereof he was charged with having entered the same house on the same date with the intent to commit rape. In the second information defendant was accused of having entered the house of one Enola Ravenscroft with the intent to commit theft. He pleaded not guilty in each action and the two causes were consolidated for trial, which was before the court without a jury. At the trial counts one and two of the Moye case were consolidated into count I of the information and defendant was charged with 'burglary with intent to commit theft and rape.' He was found guilty in the Moye case of the charge in count I and guilty as charged in the Ravenscroft information. He is appealing from each of the judgments of conviction.

The Moye Case

On September 17, 1949, shortly before 5 o'clock in the morning, Mrs. Moye was awakened by a movement of the bed covers at the foot of her bed as if someone were pulling at them. She opened her eyes and saw a man leaning over the foot of her bed. Although inside the room it was semidark, it was light outside. As she looked at him the man raised up and turned facing her and as he straightened up he drew his coat together. He began to walk toward the doorway leading into the hall. At that moment she screamed that there was a man in the house and he started to run. He escaped hurriedly into the hall, slamming the door after him.

Mr. Moye, who was asleep in the twin bed next to his wife, was awakened by her scream. He jumped out of bed and about ten feet away he saw the door between the bedroom and the hall close slowly at first and then slam. Mr. and Mrs. Moye both pursued the man through the house and outside. Mr. Moye was about 25 feet behind him going down the back stairs and saw him go around the side of the house toward the front. They saw him get into a 1947 or 1948 green Studebaker car, which was parked at the curb in front of their house, and drive off. When Mr. Moye reached the street the car was about 75 feet from him and he kept it under observation for about 500 feet. He returned to the house and notified the police. Mrs. Moye examined the premises but found nothing disturbed.

Defendant was stopped by the police at 5:00 or 5:15 A.M. of that day, about five miles from the Moye residence, at which time he was driving a 1947 or 1948 blue-green Studebaker sedan. At that time the police knew none of the details of the burglary and they released defendant when they found nothing in his car indicating a burglary. He was subsequently apprehended at his residence.

Later in the same day, in the police show-up, Mrs. Moye identified defendant as the person who had been in her bedroom. Mr Moye could not definitely identify the face of defendant but noticed that he was of the same build, same type and same general structure.

The following week Mr. and Mrs. Moye, having read defendant's address in a newspaper, drove by his home where they saw in the garage the front end of a green Studebaker sedan which corresponded in type of body, color, make and year with that driven away from their home by the intruder on the morning of September 17.

Defendant contends the evidence is insufficient to support a conviction; that where circumstantial evidence is relied upon the facts must not only be consistent with the theory of guilt but must be inconsistent with any other rational conclusion. The cases cited by defendant are not applicable, the quoted portion in each dealing with the necessity of properly instructing the jury with respect to circumstantial evidence. The instant case was tried by the court sitting without a jury.

The trier of fact is the sole judge of the weight and worth of the evidence. The function of this court is to correct errors of law and, where a jury has been waived, before the judgment may be set aside on appeal it must clearly appear that upon no hypothesis is there sufficient evidence, circumstantial or otherwise, to support the conclusion reached by the trial court. People v. Hills, 30 Cal.2d 694, 701, 185 P.2d 11; People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.

Defendant maintains that his identification was insufficient; that Mr. Moye testified he was unable to identify him at the police station and his only basis of identification was that the man he chased drove away in a green Studebaker automobile and three or four days later he drove by defendant's home and saw the front end of a car which resembled that automobile; that his identification by Mrs. Moye was insufficient for the reason that the shades were drawn in the bedroom and the light was inadequate to permit the positive identification of his features; that she observed him for only six or seven seconds before he left the room; that her testimony 'is so factually improbable as to itself indicate that there is a mistake in identity'; that since he was between her and the light, his face would be in almost complete darkness by reason of the fact that the light came from behind him and that at no time did Mrs. Moye have sufficient light to distinguish his features; that the Moyes had telephoned the police immediately after the intruder had left their house stating that he left in a car carrying out-of-state license plates, that he wore a gray tweed suit and that he had on a light colored hat whereas when defendant was first stopped by the police he was not wearing a gray tweed suit, did not have a hat on his head or in the car and the car did not have out-of-state license plates.

The question of identification of the perpetrator of a crime is one for determination by the trier of fact and unless the evidence of identity is so weak as to constitute no evidence at all this court cannot set aside the decision of the trial court. People v. Alexander, 92 Cal.App.2d 230, 234, 206 P.2d 657; People v. Waller, 14 Cal.2d 693, 700, 96 P.2d 344; People v. Farrington, 213 Cal. 459, 463, 2 P.2d 814; People v. Hightower, 40 Cal.App.2d 102, 106-107, 104 P.2d 378. In order to sustain a conviction it is not necessary that the identification be positive or free from inconsistencies. People v. Deal, 42 Cal.App.2d 33, 36, 108 P.2d 103; People v. Waller, supra; People v. Suttles, 61 Cal.App.2d 641, 643, 143 P.2d 506.

Mrs. Moye's identification of defendant as the person who was in her bedroom was positive and unequivocal. She testified she could see his face from the forehead down and that it was light enough for her to see his features; that he was standing at the side near the foot of her bed and in the light which came through a door at the foot of her bed; he had been so close she could almost touch him as he came near the head of her bed on his way to the doorway leading into the hall; she noticed his manner of walking and his habit of pulling his coat forward and buttoning it. Without any hesitation she picked him out of the police show-up the moment he entered. Although Mr. Moye was unable to identify the features of the person he chased from his home, later in the same day at the police show-up he picked defendant as being of the same build, type and general structure.

The fact that defendant owned a car similar to that which was parked in front of the Moyes' house and in which the intruder drove away is a circumstance indicating guilt. People v. Kepford, 10 Cal.App.2d 128, 130, 51 P.2d 429; People v. Latona, 2 Cal.2d 714, 724, 43 P.2d 260. Moreover, defendant incriminated himself when, en route to the police station, he said: 'Do you think I would be foolish enough to molest a woman with her husband in the bed--or in the room?' Up to that point the police officers had not mentioned that a man had been in the bedroom.

Defendant maintains there is no evidence sufficient to establish that he entered the premises with the intent of committing rape and therefore 'the entire judgment must be reversed for the reason that it was not worded in the alternative.' This contention is without merit. Defendant was originally charged with two separate counts of burglary based on the same entry of the Moyes' residence--(1) an entry with intent to commit theft and (2) an entry with intent to commit rape. At the close of the people's case the court consolidated the two counts into a single count charging 'burglary with intent to commit theft and rape.' The trial court properly consolidated the two counts. Defendant was charged with but one substantive offense, to wit, the crime of burglary. That crime was complete upon the entry by defendant of the Moyes' house with intent to commit grand or petit larceny or any felony. The entry may have been made with the intent to commit two or more felonies but it would constitute only the one burglary. People v. Hall, 94 Cal. 595, 597, 30 P. 7; People v. Milne, 60 Cal. 71, 72. In People v. Hall, supra, the information charged defendant with entering a certain dwelling house with the intent to commit grand and petit larceny. The court held that the information charged but one offense and was good against demurrer and...