People v. Massey

• Citation: 196 Cal.App.2d 230,16 Cal.Rptr. 402
• Decision Date: 11 October 1961
• Docket Number: Cr. 3903
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Richard L. MASSEY, Defendant and Appellant.
• Court: California Court of Appeals

Page 402

16 Cal.Rptr. 402

196 Cal.App.2d 230

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard L. MASSEY, Defendant and Appellant.

Cr. 3903.

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

Oct. 11, 1961.

Roger Justice Fleischmann, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Arlo E. Smith and Robert R. Granucci, Deputy Attys. Gen., for respondent.

KAUFMAN, Presiding Justice.

By an information dated August 9, 1960, the appellant, Richard L. Massey, was charged with the burglary [Pen.Code § 459] of an apartment at 620 Jones Street, San Francisco, on May 2, 1960; and with two prior felony convictions in Iowa. He admitted the prior convictions and entered a plea of not guilty. A jury found him guilty of burglary in the first degree and the court sentenced him for the term prescribed by law, and decreeing that the sentence was to run concurrently with any prior incompleted sentence. On this appeal from the judgment of conviction entered on the verdict and the order denying his motion for a new trial, appellant argues that: 1) the evidence is insufficient to sustain the judgment; 2) the evidence relating to another burglary of which he was acquitted was erroneously admitted; 3) the jury was erroneously instructed on the subject of entry; and 4) it is necessary that he be remanded to the Iowa authorities in order to obtain the benefit of the concurrent aspect of his sentence.

The record reveals the following facts: about 4:30 a. m. on the morning of May 2, 1960, Mrs. Sarah Finley, who lived alone in a one-room apartment, was awakened when she felt 'a terrific jerk'. She saw a Negro man hovering over her face and screamed. The intruder hurried to the open window, leaped out and ran off. Mrs. Finley took a pill for her heart condition and telephoned for help. The police arrived and discovered that $13 was missing from her purse, as well as a few other small items from the apartment. A large rectangular piece had been cut out of the sheet on Mrs. Finley's bed, probably with the scissors on the nearby table. Later the same day, Mrs. Finley's apartment was dusted for latent fingerprints by an officer from the crime laboratory. A fingerprint was found on the inside of the window in Mrs. Finley's room and a knife outside the window.

Mrs. Finley had lived for several years in the apartment on the first floor of the Gaylord Hotel at 620 Jones Street in San Francisco. Her apartment had only two windows which overlooked the porch and the hotel next door. On the prior evening, May 1, 1960, she retired about 10:00 p. m.; as the night was very warm, she opened both windows, locked them with the chain, and covered herself only with a sheet.

The above occurrence remained unsolved for several weeks. About 3:00 a. m. on the morning of May 26, 1960, Elsie Cox, who lived alone in a two-room apartment at 757 Sutter Street, awoke and in the large mirror facing her bed, saw the reflection of a man entering the living room where she slept. She could see him very clearly as the living room window extended almost the entire wall and overlooked the brightly lit Trader Vic's parking area next door. The venetian blinds on the window were down but open. She watched the prowler creep around her bed, and noticed that he kept a white cloth over his hand as he flashed a light into the closet and took a leisurely survey. He then turned and lifted up the pillow next to hers and pushed his hand under it. Then he straightened up, proceeded to the end of the bed, and the other side of the room. After he climbed out the kitchen window, she called the police. Later, she discovered that only a dish towel was missing, although several things were awry. Miss Cox's apartment was on the second floor; there was a fire escape and some pipes near the kitchen window. Shortly thereafter, a police officer saw the appellant walking down Post Street near Mason Street, and returned with him to Miss Cox's apartment. Miss Cox positively identified the appellant as the prowler at that time and at the later trial.

On June 9, 1960, while in custody on the Cox matter, the appellant was questioned about the Finley burglary. He denied being at Mrs. Finley's apartment on the morning in question and indicated he did not wish to make any further statements. On July 26, 1960, the preliminary hearing was held in Mrs. Finley's room because of her heart condition. At this time, Mrs. Finley testified that the prowler who was in her room on the morning of May 2 did not look like the appellant but was huskier, fatter and older. At the trial, she testified that the prowler looked very much like the appellant but admitted that she had observed the prowler for only about half a second and that it was so dark that she couldn't tell. She explained that the inconsistency in her identification was due to her nervousness at the preliminary.

The prosecution's expert witness testified that in his opinion, the latent fingerprint found on the window of Mrs. Finley's apartment was appellant's. The appellant took the stand, admitted the two prior felony convictions and being on parole from the Iowa Men's Reformatory for one of them. He testified that on May 1, he had gone to bed around 10 o'clock at the home of his sister and brother-in-law at 184 Hoff Street. The appellant's sister and her husband also testified that the appellant was in his bed on the night of May 1 at their home in the Ingleside district. It was also brought out at the trial that one week earlier, the appellant had been tried and acquitted of the Cox burglary.

The first argument on appeal is that the evidence is insufficient to support the verdict finding the appellant guilty of burglary in the first degree of Mrs. Finley's apartment. Appellant's argument centers on the fingerprint which was found on the inside of Mrs. Finley's window, and the fact that other fingerprints were also discovered but could not be identified. He argues that where there are at the scene of the crime fingerprints other than those identified as the defendant's, and which are neither identified no explained, the proof of defendant's prints is not sufficient to support a conviction, citing State v. Minton, 1948, 228 N.C. 518, 46 S.E.2d 296, and Anthony v. State, 1951, 85 Ga.App. 119, 68 S.E.2d 150. However, in the cases cited by the appellant, the fingerprints in question could have been lawfully made. Appellant also cites People v. Flores, 58 Cal.App.2d 764, 137 P.2d 767. In that case, however, a person other than the defendant admitted stealing the car on which the defendant's fingerprint was found and was identified by the victims. In the instant case, because of the location of the fingerprint on the inside of the window and the uncontroverted evidence that the appellant did not have Mrs. Finley's permission to be in the apartment, the jury properly inferred that the appellant's fingerprint could only have been impressed at the time the crime was perpetrated. The jury was not required to believe the defendant's theory that his fingerprint on the Finley window was made during the preliminary examination on July 26.

Burglary may be proved by circumstantial evidence (People v. Acosta, 114 Cal.App.2d 1, 249 P.2d 316). Fingerprints are the strongest evidence of identity of a person and under proper circumstances alone sufficient to identify the defendant as a criminal (People v. Beem, 192 Cal.App.2d 207, 13 Cal.Rptr. 238; People v. Adamson, 27 Cal.2d 478, 165 P.2d 3). Here, in addition to the circumstantial evidence provided by the fingerprint, there was the direct evidence provided by the identification of the defendant by Mrs. Finley. The conflicts and inconsistencies between her testimony at the trial and at the preliminary examination were for the jury. On appeal, this evidence may be considered in support of the judgment (People v. Barnett, 159 Cal.App.2d 22, 29, 323 P.2d 96). As there was uncontroverted evidence that the burglary occurred in an inhabited dwelling in the nighttime and a knife was found outside the window, the jury properly found the offense to be first degree burglary (Pen.Code § 460). We think, therefore, that the evidence sustains the verdict finding the appellant guilty of burglary in the first degree.

Appellant next argues that the evidence relating to the subsequent burglary of Miss Cox's apartment was not admissible because of his acquittal and because of its prejudicial effect. It is well established, however, that an acquittal does not prevent the admissibility of evidence concerning another wrongful act (People v. Huston, 156 Cal.App.2d 670, 671, 320 [196 Cal.App.2d 235] P.2d 175; see also People v. Brown, 168 Cal.App.2d 549, 336 P.2d 1 [defendant charged but not yet convicted], and People v. Raleigh, 83 Cal.App.2d 435, 442, 189 P.2d 70 [other charges dismissed at preliminary examination]), as conviction of the offense is not a prerequisite to the introduction of such evidence.

As stated in People v. Brown, supra, 168 cal.App.2d at pages 552-553, 336 P.2d at page 3:

'The ultimate fact to be proved is the defendant's guilt of the crime with which he is charged and not the other offense. The evidence of the other offense is admissible even though the defendant was not convicted of it, provided such evidence is relevant. Therefore, the rule concerning the admissibility of other offenses expressed in the Raleigh case must be limited to those circumstances where the proof is relevant and material to the crime for which the defendant is being tried.'

Appellant here argues that the Cox burglary is not relevant to the Finley burglary; the attorney general argues that the evidence was relevant and admissible as the Cox burglary was committed in the same neighborhood [about 2 blocks from the Gaylord Hotel where Mrs. Finley lived], was committed within the same month in the early hours of the morning, and both involved the use of a white cloth, Miss Cox's dish...