People v. Mauldin

• Decision Date: 23 May 1960
• Docket Number: Cr. 3612
• Citation: 181 Cal.App.2d 184,5 Cal.Rptr. 243
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John J. MAULDIN, Defendant and Appellant.

Page 243

5 Cal.Rptr. 243

181 Cal.App.2d 184

PEOPLE of the State of California, Plaintiff and Respondent, v. John J. MAULDIN, Defendant and Appellant.

Cr. 3612.

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

May 23, 1960.

Fredricks & Sullivan, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Arlo E. Smith, John J. Klee, Jr., Deputy Attys. Gen., for respondent.

KAUFMAN, Presiding Justice.

Appellant was charged by two separate informations with burglary (section 459 of the Penal Code) and forgery (section 470 of the Penal Code). He entered a plea of not guilty to both charges and admitted the three prior convictions charged. The causes were consolidated for trial and a jury found the appellant guilty as charged on both counts. On this appeal from the judgment of conviction and the order denying his motion for a new trial, he argues that the evidence is insufficient to sustain the verdict on either count.

The People argue that this court is without unrisdiction to hear this appeal as the notice of appeal was filed three days beyond the ten-day period specified by Rule 31(a) of the Rules on Appeal, and that the appellant has not brought himself within the constructive filing exception of People v. Slobodion, 30 Cal.2d 362, 181 P.2d 868; People v. Dailey, 175 Cal.App.2d 101, 345 P.2d 558. The record indicates that the appellant was sentenced on Friday, October 3, 1958. The tenth day fell on Monday, October 13, 1958, a state holiday, so that the time to appeal was automatically extended to Tuesday, October 14. The notice of appeal, dated Sunday, October 12, was filed in the county clerk's office on October 17, 1958, three days late.

The People argue that this court is without jurisdiction and must dismiss the appeal. ¹

In People v. Dailey, 175 Cal.App.2d 101, 345 P.2d 558, this court (Division One) held that the delivery by a defendant of his notice of appeal to prison authorities on the tenth day was a constructive filing in the county clerk's office as of that day. The same rule is applicable in the instant case. Appellant had filed an affidavit stating that on October 12, 1958, he prepared his notice of appeal herein and delivered the same to the legal clerk at the California Medical Facility at Vacaville, California. The notice of appeal was dated October 12; the following day was a state holiday. The record does not show on what date the notice was mailed to the county clerk or whether the notice was filed the day on which it was received. Even in the absence of an affirmative showing by the appellant, there is authority for this court to hold that the appeal was taken in time. Cf. People v. Graff, 104 Cal.App.2d 32, 230 P.2d 654, wherein the notice arrived in the county clerk's office on the twelfth day; although no showing was made that the appellant had mailed or given the notice to anyone for that purpose, the court held that the appeal was timely as the appellant's brief stated that the notice had been prepared and signed on the eighth day. There can, therefore, be no question that this appeal was timely filed.

As to the merits, it is clear from a review of the record that there is ample evidence to sustain the verdict on both counts. We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence and then determine whether the guilt of the defendant is deducible therefrom. People v. Newland, 15 Cal.2d 678, 104 P.2d 778.

The jury found the defendant guilty of burglary in the second degree. The record reveals the following facts: one Massey left his home at 637 Hayes Street in San Francisco about 7 o'clock in the evening of May 31, 1958. As he planned to be away overnight, he put a padlock on the front door in addition to a Yale lock; the back door was bolted. When he returned about 10:00 a. m. the next day, Sunday, June 1, 1958, he found that the two locks on the front door had been broken, that the back door was wide open and that two television sets and two radios were missing. Massey testified that the defendant had been at his home on May 29 and had eaten a meal there.

The appellant was arrested on June 5, 1958, as the result of a warrant from another county. His car was taken into custody. On June 6, 1958, with the appellant's permission, the trunk of his car was opened. It contained a television set, a radio, and a part of the items missing from Massey's residence. When he was first questioned about these items, the appellant unequivocally stated that he did not know Mr. Massey and that he had purchased the television set from a 'colored man' at the corner of Fillmore and McAllister Streets for $10 and that he had purchased the radio from another person at the corner of Fillmore and Golden Gate on May 28, or 29, 'around Memorial Day.' On the same day, the appellant admitted knowing Mr. Massey and that he had bought both the radio and the television set from the same person at the corner of Fillmore and McAllister for $40 and $5 respectively.

Appellant's only witness, his aunt, Mrs. Ozella Kelly, testified that the appellant was in her home from about 10:00 p. m. on May 31, 1958, until 2:00 a. m. the next morning when she retired; and that he was there at 7:00 a. m. the next morning; that on the evening of the 31st, the appellant had been drinking beer all evening with her husband and was intoxicated. Appellant's first argument is that Mrs. Kelly's testimony established that he was too intoxicated to form the specific intent necessary for the crime of burglary. There is no merit in this argument as this was a matter for the jury and they were peoperly instructed to consider whether the appellant was intoxicated at the time of the alleged offense.

Appellant also argues that his mere possession of the stolen goods alone is insufficient to substantiate the charge of burglary. However, the very cases on which he relies, also clearly indicate that possession is a circumstance to...