People v. McFarland

Decision Date20 November 1962
Docket NumberCr. 7138
CourtCalifornia Supreme Court
Parties, 376 P.2d 449 The PEOPLE, Plaintiff and Respondent, v. Walter Emmett McFARLAND, Defendant and Appellant.

Walter Emmett McFarland, in pro. per., and Harold J. Ackerman, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and A. Douglas MacRae, Deputy Atty. Gen., for plaintiff and respondent.

GIBSON, Chief Justice.

A jury found defendant guilty on two counts of unlawfully taking an automobile (Veh.Code, § 10851), five counts of burglary of the second degree (Pen.Code, §§ 459, 460), and one count of grand theft (Pen.Code, § 487, subd. 1). The sentences imposed by the court for the taking of automobiles were made concurrent with each other but consecutive with respect to concurrent sentences imposed on the burglary counts. The sentence for grand theft was made consecutive with respect to the other sentences. Defendant has appealed, contending, among other things, that the evidence is insufficient to support his convictions and that the court erred in instructing the jury.

In regard to one of the counts of unlawfully taking an automobile, it was shown that on September 11, 1960, an automobile owned by Frank Nunley was stolen and was later found by the police, abandoned and in a 'stripped' condition, with its convertible top and other accessories missing, as well as personal belongings that had been inside. On September 30, Nunley saw a Nash automobile equipped with a top which he recognized as being the one missing from his car, and he gave the license number to the police, who determined that the Nash was registered in the name of defendant's wife. When defendant and his wife were questioned on October 5, defendant at first denied having ever owned the Nash but later stated that he had owned it and had sold it, describing the place where the purchaser lived. The police and Nunley went to that location and found the Nash, which was equipped with a convertible top and various other accessories identified by Nunley as the ones taken from his car. The owner of the Nash told the police that it was equipped in this way when he purchased it from defendant on September 19. The officers went with Nunley to defendant's residence, placed him under arrest, and, with his consent, searched the garage, which had been locked. They found an automobile seat cover with Nunley's name on it, as well as eyeglasses and tools which Nunley identified as being his.

The search of defendant's garage disclosed a considerable quantity of equipment and personal property, and some of the items, which the police had reason to believe were recently stolen, were seized by them. After going to headquarters they ascertained that other items seen in the garage answered the description of stolen property, and they returned with a search warrant and took them as well.

Among the things found were the engine and the rear axle assembly of a Jaguar automobile (involved in the second count of unlawfully taking an automobile). The engine was the one from a 1950 Jaguar automobile which had been stolen on September 17, 1960, and the axle assembly was of a type used in Jaguar models from 1950 through 1952.

The seized property included the following items involved in three of the burglary counts: (1) An adding machine and a Smith-Corona portable typewriter stolen in a burglary on August 9, 1960; (2) a toolbox and tools stolen in a burglary on August 23, 1960; (3) a tape recorder and tapes stolen in a burglary on September 29, 1960.

Another item found in defendant's garage was an air compressor stolen late in August 1960 from inside a hospital under construction. The taking of the compressor, which was worth six or seven hundred dollars, formed the basis of the grant theft count as well as one of the burglary counts.

There was also evidence (forming the basis of another of the burglary counts) that on the night of September 29, 1960, a putty knife and about five dollars were stolen from a commercial garage, that the office in the garage had been entered through a hole cut in the wall, and that, although the stolen property was not found in defendant's possession, the inside surface of a piece of the plasterboard cut out of the wall had a fingerprint on it which an expert identified as defendant's.

The police questioned defendant about the property involved in the various counts, telling him it was stolen. He said that he did not want to discuss the situation, that he was in 'enough trouble already,' and that the police could not help him. When the police suggested that a woman may have been with defendant when Nunley's car was stolen and that someone must have helped him in that theft, he replied, 'You know my wife wasn't with me * * *. I can show you how one man could do it.' In response to a question about the Jaguar engine, defendant said he had gotten it in a junkyard, but he could not or would not name the yard. With respect to the adding machine, typewriter and tape recorder, defendant said he bought them but could not remember where, when, or from whom, or how much he paid. Defendant's wife told the officers he had brought the adding machine home in the middle of the night. The police suggested to defendant that someone must have helped him take the air compressor because it was so heavy, and he replied, 'Well, I took it out in three pieces.' As far as appears, he offered no explanation to the police regarding his possion of the stolen toolbox and tools.

Defendant did not take the stand at the trial, and he did not introduce any evidence as to how the stolen property was acquired or why his fingerprint was found at the scene of one of the burglaries.

Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt. (E.g., People v. Citrino, 46 Cal.2d 284, 288-289, 294 P.2d 32; People v. Thompson, 120 Cal.App.2d 359, 260 P.2d 1019; People v. Morris, 124 Cal.App. 402, 404, 12 P.2d 679.) This court stated in People v. Lyons, 50 Cal.2d 245, 258, 324 P.2d 556, 562, '(P)ossession of stolen property, accompanied by no explanation or an unsatisfactory explanation of the possession, or by suspicious circumstances, will justify an inference that the goods were received with knowledge that they had been stolen. The rule is generally applied where the accused is found in possession of the articles soon after they were stolen.' (See also People v. Reynolds, 149 Cal.App.2d 290, 294, 308 P.2d 48; People v. Lopez, 126 Cal.App.2d 274, 278, 271 P.2d 874.) In People v. Citrino, supra, 46 Cal.2d 284, 288-289, 294 P.2d 32, 35, after pointing out that corroboration need only be slight and may be furnished by conduct of the defendant tending to show his guilty, we said, '* * * and the failure to show that possession was honestly obtained is itself a strong circumstance tending to show the possessor's guilt of the burglary.' Substantially the same statement is made in a number of other cases, including People v. Russell, 34 Cal.App.2d 665, 669, 94 P.2d 400 (burglary), People v. Golembiewski, 25 Cal.App.2d 115, 117, 76 P.2d 717 (burglary), People v. Taylor, 4 Cal.App.2d 214, 217, 40 P.2d 870 (burglary), and People v. Morris, 124 Cal.App. 402, 404, 12 P.2d 679 (burglary).

It has frequently been held that possession of recently stolen property together with a false explanation will support a conviction. (E.g., People v. Ransome, 180 Cal.App.2d 140, 146-148, 4 Cal.Rptr. 347 (theft); People v. Russell, 120 Cal.App. 622, 625-626, 8 P.2d 209 (burglary); People v. Scott, 66 Cal.App. 200, 203, 225 P. 767 (theft).) A defendant's silence upon arrest was relied on as corroborative evidence in People v. Wells, 187 Cal.App.2d 324, 331-332, 9 Cal.Rptr. 384, 389 (burglary), where it was said: 'The jurors would naturally and reasonably conclude that if he (the defendant) had purchased the property or acquired possession of it honestly he would be swift to declare and explain the circumstances that vindicated his conduct. * * * His silence, when it would have been so easy for him to speak if innocent, is quite persuasive and convincing.' (See also People v. Miller, 45 Cal.App. 494, 496, 188 P. 52 (theft).)

The great weight of authority in other jurisdictions recognizes that an inference of guilt is permissible where recently stolen property is found in the conscious possession of a defendant and the possession is not explained. (See 101 Am.St.Rep. 481-524; Wigmore on Evidence (3rd ed. 1940) vol. 1, §§ 152, 153, pp. 598-600; id., vol. 6, § 1781, pp. 226, 228; id., vol. 9, § 2513, pp. 417-423; 3 Underhill's Criminal Evidence (5th ed. 1957) §§ 600, 601, 602, pp. 1460-1471; id., § 723, pp. 168-1687; 56 A.L.R.2d 1360-1365; 12 C.J.S. Burglary § 49, § 55b, pp. 717, 736-737; 52 C.J.S. Larceny § 105, p. 924 et seq.)

The rule may be stated as follows: Where recently stolen property is found in the conscious possession of a defendant who, upon being questioned by the police, gives a false explanation regarding his possession or remains silent under circumstances indicating a consciousness of guilt, an inference of guilt is permissible and it is for the jury to determine whether or not the inference should be drawn in the light of all the evidence. As shown by the California cases cited above, this rule is applicable whether the crime charged is theft, burglary, or knowingly receiving stolen property. (See also 9 Wigmore on Evidence (3rd ed. 1940) § 2513, pp. 422-423.)

The many decisions which set forth the rule permitting an inference of guilt, including United States Supreme Court cases (Wilson v. United States, 162 U.S. 613, 619-620, 16 S.Ct. 895, 40 L.Ed. 1090; see McNamara v....

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