People v. McNeal

• Decision Date: 06 February 1963
• Docket Number: Cr. 42
• Citation: 28 Cal.Rptr. 173,212 Cal.App.2d 731
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eddie McNEAL, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 173

28 Cal.Rptr. 173

212 Cal.App.2d 731

The PEOPLE, Plaintiff and Respondent, v. Eddie McNEAL, Defendant and Appellant.

Cr. 42.

District Court of Appeal, Fifth District, California.

Feb. 6, 1963.

Kane & Canelo and Martin J. Rosen, Merced, for appellant.

Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Edward A. Hinz, Jr., Deputy Atty. Gen., Sacramento, for respondent.

CONLEY, Presiding Justice.

The defendant, Eddie McNeal, was convicted of burglary of the second degree and sentenced to state's prison. The crime as charged in the information was that he '* * * did wilfully and unlawfully enter a building, to wit: a tool shed on the property of Frank Cozzi, located near Dos Palos, with the intent to commit theft thereon.'

The corpus delicti was clearly proved. Mr. Cozzi's tool shed, and enclosed building but not an inhabited dwelling, was entered on November 29, 1961, in the nighttime through a hole in one corner of the structure, and a number of tools, including an electric drill and a screwdriver with a yellow handle which had been burned and a bent shaft, were stolen. The next day when Mr. Cozzi arrived at the shed at about 7:30 or 8 a. m. he saw that a hole had been made in the southwest corner of the building, and noted that tools which had been locked in the shed on the day before were missing.

Shortly before Christmas in 1961, the appellant went to the home of one Oliver Edwards in South Dos Palos and sought to borrow money from him. When Edwards refused, appellant pleaded with him, saying that he had his electric drill in his car, which he had brought from Los Angeles, and that he would sell or pledge it to Edwards. Appellant went to his automobile, which was parked nearby, and returned to the Edwards home with the electric drill. Edwards thereupon gave appellant $10 for it, with the understanding that when appellant's wife got her check for current work and appellant repaid Edwards, the electric drill would be returned to him.

In the course of his investigation of the burglary Deputy Sheriff Jess Bowling, Jr., recovered the electric drill and questioned Edwards about it; he also had a conversation with appellant at the Dos Palos jail. At that time McNeal told him that he had gotten the electric drill from some fellow who used to ride to work with him, a man named 'George,' but he did not know his last name and did not know where he lived. On the following day appellant changed his story and said that Wilbur Farris had sold him the drill; he claimed that he had said that a man named 'George' had owned it because he 'didn't want to get Farris into trouble.' He also then stated that he always called Farris 'George,' but later admitted that he had known Farris' first name was Wilbur. The appellant admitted to Officer Bowling that he owned the 1948 black Chevrolet in which he had taken the drill to Edwards' home, and during the course of his investigation the officer found out that the license number of the automobile was FAC 850 and learned that the car had been discovered by the Highway Patrol beside the highway in Los Angeles County and that it was now stored at the Signal Cove Garage at Gorman. Soon afterwards, on his way to Los Angeles to bring back another prisoner, Officer Bowling examined appellant's car at Gorman and, finding the trunk unlocked, ascertained that there were tools in it, including the yellow-handled screwdriver which had been stolen.

Both the drill and the screwdriver were received in evidence. The only point raised on the appeal is that the screwdriver was recovered illegally in that it was not shown by the People that a search warrant had been obtained to search the car in the garage at Gorman.

It should be observed initially that entirely aside from the screwdriver, there was ample evidence to justify the guilty verdict. The applicable principles are thus stated in the case of People v. Lyons, 50 Cal.2d 245, 258, 324 P.2d 556, 562:

'Defendant does not attempt to controvert the evidence that the watch had been stolen and was in defendant's possession at the time of his arrest, but contends that there is insufficient corroborative evidence to show guilty knowledge that the watch had been stolen. As stated in People v. Lopez (1954), 126 Cal.App.2d 274, 278, 271 P.2d 874, '[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.' 'False or evasive answers to material questions with reference to the ownership of stolen property tend to prove such knowledge.' (People v. Reynolds (1957), 149 Cal.App.2d 290, 294, 308 P.2d 48; see also People v. Cole (1903), 141 Cal. 88, 90, 74 P. 547; People v. Boinus (1957), 153 Cal.App.2d 618, 621-622[1, 2, 3], 314 P.2d 787; People v. Malouf (1955), 135 Cal.App.2d 697, 707[8, 9], 287 P.2d 834; People v. Hartridge (1955), 134 Cal.App.2d 659, 665, 286 P.2d 72; People v. Boyden (1953), 116 Cal.App.2d 278, 288[12, 13, 14], 253 P.2d 773; People v. Jacobs (1925), 73 Cal.App. 334, 339-343[2, 3, 4], 238 P. 770.)

'The jury could find that defendant's statement to the police officer, shortly after his arrest, that the watch 'was his, that he had had it for some time' was a conscious evasive and misleading explanation. Under the authorities cited above this is sufficient to show a consciousness of guilt and justify and inference that defendant received the watch with knowledge that it was stolen. (Cf. People v. Wayne (1953), 41 Cal.2d 814, 823[4, 5], 264 P.2d 547.) It follows that such evidence tends to connect the defendant with the commission of the offense and satisfies the requirements of section 1111 of the Penal Code. (People v. Santo (1954), supra, 43 Cal.2d 319, 327, 273 P.2d 249.)'

(See also People v. Citrino...