People v. Molarius

• Decision Date: 14 February 1963
• Docket Number: Cr. 4201
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Frank Martin MOLARIUS, Jr., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 541

28 Cal.Rptr. 541

213 Cal.App.2d 10

PEOPLE of the State of California, Plaintiff and Respondent, v. Frank Martin MOLARIUS, Jr., Defendant and Appellant.

Cr. 4201.

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

Feb. 14, 1963.

Rehearing Denied Feb. 28, 1963.

Clarence B. Canson, Sacramento, for appellant.

Stanley Mosk, Atty. Gen., John S. McInerny, Keith E. Pugh, Jr., Deputy Attys. Gen., San Francisco, for respondent.

KAUFMAN, Presiding Justice.

Defendant, Frank Martin Molarius, Jr., appeals from a judgment rendered on a jury verdict finding him guilty of burglary in the second degree (Pen.Code § 459), and from the order denying his motion for a new trial. The contentions on appeal are that certain evidence used at the trial was obtained by an unlawful search and seizure, and that the identification evidence adduced at the trial does not sufficiently support the verdict.

We turn first to the appeal from the order denying the motion for a new trial. This appeal must be dismissed since it is an appeal from a nonappealable order under section 1237 of the Penal Code, as amended by Stats.1961, chapter 850 (People v. Simons, 208 A.C.A. 81, 25 Cal.Rptr. 57).

The record reveals the following facts: on December 19, 1961, the general store in Bradley, California, was burglarized. On that date, about 2:00 a. m., Mrs. Allene Harrington, who lived next door to the store, was awakened by loud popping noises. She got up, went to the window, looked into the alleyway between her home and the store, and saw a man walk down the alley between her home and the store. She remained at the window for a few moments and observed a second man, who was in the shadows at the rear of the store, enter the store with the first one. Mrs. Harrington immediately called Mrs. Sims, the wife of the owner of the store. Mrs. Harrington's son, Samuel, overheard the call, got up and went to the window with his mother, and saw a man running towards the front of the building.

Mr. Sims immediately put on his clothes, got a shotgun and drove around the side of the store. After noticing that the sliding door had been opened and that a car was parked about 300 feet from the rear of the store, he went to get Mr. Hedges from the Shell station nearby. When they returned a little after 2:00 a. m., Hedges went to the front and Sims around to the back. Sims discovered that the padlock on the back gate and the cyclone fence had been broken and that the postmaster's dogs in the back yard were eating large scrap bones, whereas they normally were fed only dog food mix. He then heard someone shout and saw two men run out of the back of the store and up the alley. He followed them down the alley and found a screwdriver. Mr. Sims then examined the car and trailer parked at the rear of the store. A small dog was in the car and some boxes and a pushcart in the trailer. Sims then entered the store from the front with Mr. Hedges. Sims saw a strange crowbar. Nothing was missing from the store.

Sims called the sheriff's office about 2:15 a. m. The deputy sheriffs arrived about 2:45 a. m. and investigated the car and trailer parked near the rear of the store. The car was a 1952 Plymouth, bearing California license number AME 186; the trailer, a Nationwide rental trailer, bearing Colorado license number JX 2586. They noticed there were bones around the vehicles like the bone scraps which the dogs in back of the store were eating. The deputies noticed that the vehicles were parked in an isolated area with the keys in the ignition. A small dog was tied with a rope in the front seat. No occupants were about, and there was no visible registration card.

Upon checking with Sacramento, the officers learned that the car was registered to one Betty Fowler, whom they were not able to contact for several hours. The officers returned to the automobile the following morning and noted that the keys were still in the ignition and the dog in the front seat. They also observed a man's toilet article kit, a small zipper bag, on the front seat. They then proceeded to search the automobile. The toilet article kit contained six bottles of medicine prescribed for Frank Molarious. The officers found a pair of bolt cutters between the back and front seats. These cutters had been used to cut the padlock on the cyclone fence. In the trailer, they found a two-wheeled lift truck, a carpenter's apron containing several chisels and punches, and a sledge hammer. The rental contract from a trailer rental company in Sacramento indicated that the trailer had been rented by Frank M. Molarious and indicated the number of the driver's license of the person renting. A certified copy of the driver's license issued to Francis Martin Molarius was also placed in evidence.

The first contention on appeal is that the search of the car and trailer was an unreasonable search. Appellant argues that a search and seizure of articles is justified only when there is a lawful arrest. However, it is well established that a valid search may be made in the absence of either an unlawful arrest or a valid search warrant (People v. Garrison, 189 Cal.App.2d 549, 11 Cal.Rptr. 398; People v. Brajevich, 174 Cal.App.2d 438, 344 P.2d 815; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543). As we indicated in People v. Simons, 208 A.C.A. 81, 82, 84, 25 Cal.Rptr. 57, under circumstances such as these, the burden rests on the prosecution to show proper justification. The determinative question is whether, in the absence of a warrant or arrest, the search was a reasonable one (People v. Brown, 45 Cal.2d 640, 290 P.2d 529). Then, the primary question is whether the officers...