People v. McCree

• Decision Date: 19 October 1954
• Docket Number: Cr. 2539
• Citation: 128 Cal.App.2d 196,275 P.2d 95
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Madelyn McCREE, Defendant and Appellant.

Page 95

275 P.2d 95

128 Cal.App.2d 196

The PEOPLE of the State of California, Plaintiff and Respondent, v. Madelyn McCREE, Defendant and Appellant.

Cr. 2539.

District Court of Appeal, Third District, California.

Oct. 19, 1954.

Rodriguez & Janvier, Oakland, for appellant.

Edmund G. Brown, Atty. Gen., by Doris H. Maier & Frederick G. Girard, Deputies Atty. Gen., for respondent.

WARNE, Justice pro tem.

Appellant was convicted of a violation of Section 606 of the Penal Code, a felony, to-wit, in that she did wilfully and intentionally injure a public jail or place of confinement. She appeals from the judgment and from the order denying a new trial.

By an information, appellant was charged in Count I with the crime of arson, as set forth in Section 448a of the Penal Code, and in Count II with a violation of Section 606 of the Penal Code, to-wit, the wilful and intentional injury of a public jail or place of confinement.

The jury found appellant guilty of injuring a jail as charged in Count II of the information, and not guilty of arson as charged in Count I of the information. A motion for new trial was made by appellant and denied by the court. The matter was then referred to the probation officer pending pronouncement of judgment and sentence, and on October 13, 1953, the court placed appellant on probation for the term of one year and exonerated her bond.

Respondent contends that this appeal was taken from the judgment of conviction and from the order denying a new trial, and as there was no judgment entered other than the order granting probation to the appellant, the appeal from the judgment should be dismissed. This contention must be sustained. Orders granting probation are now appealable. Penal Code, Section 1237. But here it is apparent, since appellant makes no attack on that order, that she did not intend to appeal therefrom. Hence we cannot construe her notice as such an appeal, as was done in People v. Robinson, 43 Cal.2d ----, 271 P.2d 872. Since no judgment was entered there cannot be an appeal therefrom. People v. Guerrero, 22 Cal.2d 183, 184, 137 P.2d 21; People v. McShane, 126 Cal.App.2d Supp. ----, 272 P.2d 571. However, the merits of this appeal may be decided on the appeal from the order denying a new trial.

The facts are these: On July 3, 1953, at approximately 3:30 P.M. appellant was arrested for creating a disturbance in the Nevada City Hall. Appellant was talking in a loud and boisterous tone, and appeared to the arresting officer to be under the influence of intoxicating liquor. Appellant was then taken to the sheriff's office in the Nevada County jail and booked as being drunk in a public place. At the time appellant was brought to the sheriff's office she was uncooperative, being extremely abusive and profane in her language. While in the sheriff's office, appellant had a long conversation with the Envada County Sheriff, and appeared to quiet down considerably. Appellant called an attorney and requested that he arrange bail for her. Bail was fixed at $25. The matron of the Nevada County jail then took appellant to the women's quarters of the Nevada County jail. Appellant was the only prisoner presently incarcerated in the women's quarters. These quarters consist of a central room, two central cells, and two additional rooms, one containing a shower, and the other containing a toilet, wash basin, and medicine cabinet. The furniture consisted of a table, two chairs, six metal cots, and mattresses. The central room was the only room which had a doorway to the outer hall, and this door was constructed of wood, and of approximately six inches in thickness. The windows in the room were barred. There was no fire or indication of fire at the time appellant was locked in the jail. Within approximately an hour after appellant had been locked in the jail alone, a deputy sheriff noticed smoke and promptly located its source as the women's quarters of the jail. The deputy sheriff and the sheriff attempted to get into the women's quarters, but as soon as the door was unlocked and opened the flame and smoke drove them back. The volunteer fire department was notified and arrived in approximately three to five minutes. The firemen and the deputy sheriff, under the protection of a 'fog nozzle', entered the women's quarters of the jail, and appellant was found in the compartment which housed the toilet, on the floor, curled around the toilet bowl. The window of this compartment was open, and there was very little smoke in the room. The deputy sheriff attempted to arouse appellant, and she asked, 'What was the matter, * * * what happened?' The deputy then told her that they had to get out of there, and as the appellant made no effort to get up, the deputy gathered her up and carried her out bodily. Approximately ten minutes subsequent to the rescue appellant was talkative, but very belligerent, and confused. The women's quarters of the jail were within hearing distance of the sheriff's office and a warning buzzer was also available to summon a deputy sheriff. The mattress on the cot which had been occupied by appellant was on fire; also, two mattresses had been removed from the metal cots and were burning on the floor directly in front of the thick wooden door above mentioned, which connected the women's quarters with the remainder of the jail. These mattresses were on fire when the deputy sheriff and the firemen entered to extinguish the flames. In fact, they were required to step over the conflagration to enter the ward. Within the radius extending approximately five feet back from the heavy wooden door, the linoleum had been completely burned through, as well as the first floor, almost to the sub-floor. The door itself was burned and charred. The appellant admitted possessing matches during the period she was incarcerated in the Nevada County jail. According to the appellant's testimony, she was not intoxicated, but sick instead. She had a headache and had called a doctor prior to leaving the sheriff's office. The appellant had lain down on one of the cots and lit a cigarette; that the cigarette occasioned a throat congestion which necessitated a trip to the toilet; that when appellant returned from the toilet a mattress on a cot was on fire; that appellant tried to put out the flame; that failing in this, appellant struggled with the mattress in an attempt to get it to the water in the toilet bowl; that the fire forced her to drop the mattress; that appellant sought refuge in the bathroom; and appellant testified she had no knowledge of how the fire was occasioned.

Appellant's first contention on this appeal is that the evidence was insufficient to substantiate the verdict. If there is substantial evidence tending to support the verdict of the jury, then this Court cannot, as a matter of law, substitute its judgment on the facts for that of the jury. 'No rule of criminal law and procedure is better established in this state. It is the function of the jury, in the first instance, and of the trial court after the verdict, to determine what facts are established by the evidence and, before the verdict of the jury which has been approved by the trial court can be set aside on appeal upon the ground of the insufficiency of the evidence to support it, it must be made clearly to appear that upon no hypothesis whatever is there substantial evidence sufficient to support the conclusion of the trial court.' People v. Tedesco, 1 Cal.2d 211, 219, 34 P.2d 467, 470; also People v. Reifenstuhl, 37 Cal.App.2d 402, 99 P.2d 564; People v. Renek, 105 Cal.App.2d 277, 233 P.2d 43; People v. Newland, 15 Cal.2d 678, 104 P.2d 778. Viewing the evidence in the light most favorable to the appellant, it is apparent that the evidence is sufficient to support her conviction, and especially so when we keep in mind appellant's extremely belligerent attitude both before and immediately subsequent to the fire; that appellant was the sole occupant of the women's quarters; that at the time of her incarceration an examination disclosed no hint of fire in those quarters; that in addition to the mattress on the cot which was ablaze, there were also two mattresses placed immediately in front of the door which were also burning. The inference that the appellant substituted physical defiance for verbal belligerence, and thus wilfully and intentionally placed the two mattresses in front of the door and thereupon set the fire is justified.

This inference, from the evidence, was not lessened when appellant, testifying in her own behalf, gave no explanation as to how the two mattresses were transferred from the metal cots to the position in front of the door, which served as the sole entrance to appellant's place of confinement.

Appellant cites People v. Heuss, 95 Cal.App. 680, 273 P. 583, and People v. McClain, 115 Cal.App. 505, 1 P.2d 1085, in support of her contention that wherever circumstances relied on as incriminating are equally compatible with innocence, there is a failure of proof necessary to sustain a conviction, and as a matter of law a conviction should be reversed. These cases merely held that the court must instruct the jury that circumstantial evidence, in order to convict, must establish such facts and circumstances as to establish guilt of the party charged and inconsistent with any other rational conclusion. In the instant case, the trial court gave an instruction proposed by appellant which fully and adequately complied with the holding in the above cases.

The rule that circumstances relied upon by the prosecution must be consistent with guilt and inconsistent with any hypothesis of innocence is a rule of instruction for the jury, and is not the rule for the guidance of the court on review. People v. Huizenga, 34 Cal.2d 669, 213 P.2d 710. Once a jury has resolved the question, the jury having found the appellant guilty, the court will not examine the jury's conclusion unless there is no evidence...