People v. Murphy

• Decision Date: 27 August 1959
• Docket Number: Cr. 6332
• Citation: 343 P.2d 273,173 Cal.App.2d 367
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Donald MURPHY, Daniel Calvin Hall and John Russell Engstrom, Defendants, Daniel Calvin Hall and John Russell Engstrom, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 273

343 P.2d 273

173 Cal.App.2d 367

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Donald MURPHY, Daniel Calvin Hall and John Russell Engstrom, Defendants Daniel Calvin Hall and John Russell Engstrom, Defendants and Appellants.

Cr. 6332.

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

Aug. 27, 1959.

Al Matthews, Los Angeles, for appellant Hall.

Gladys Towles Root and Eugene V. McPherson, Los Angeles, for appellant Engstrom.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Marvin L. Part, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Appellants John Russell Engstrom and Daniel Calvin Hall were charged with four counts of burglary and one count of attempted burglary. Both were found guilty of Counts III and IV, while Hall was also found guilty of Count V, attempted burglary. Engstrom was also charged with three prior felony convictions which the court found to be true as alleged.

Defendants appeal from the judgments and sentences. Since no appeal lies from the sentences, the purported appeals therefrom will be dismissed. People v. Millum, 42 Cal.2d 524, 525, 267 P.2d 1039. Defendant Hall also appeals from the finding that he was armed with a deadly weapon, and defendant Engstrom from the finding that the priors alleged are true. Although designated by appellants as 'findings,' these matters constitute a part of the judgments and are reviewable upon the appeals from the judgments. Neither appellant, however, makes any mention thereof in his appeal brief; there is no specification of error, and no authority or argument presented in these respects. This court, therefore, will disregard such matters in this opinion. See People v. Vivian, 50 Cal.App.2d 533, 537, 123 P.2d 613; People v. Purcell, 22 Cal.App.2d 126, 129, 70 P.2d 706; People v. Resum, 120 Cal.App.2d 618, 619, 261 P.2d 765.

By stipulation the matter was submitted to the trial court solely upon the transcript of the preliminary hearing and the exhibits received in evidence at that time. Defendants did not testify.

The facts concerning Counts III and IV are interwoven: On October 22, 1957, at approximately 12:45 a. m., Jeanne Van Pelt was called to her front door by the bell. She testified that when she opened the door a man with a gun pushed his hand inside and broke the chain latch; this was appellant Engstrom. He and appellant Hall then entered and she was ordered into a bedroom and told to get in bed with her daughters. She was placed in fear by the gun. Engstrom remained with her. Hall went into her husband's bedroom and through the wall Mrs. Van Pelt heard Hall tell her husband to get out of bed. Then Engstrom also went into the husband's bedroom and she heard Engstrom or Hall ask concerning the keys and combination to the safe of a Thriftimart Market which her husband managed. Then a third man with a handkerchief mask entered the house and he also questioned her husband concerning the market. Engstrom then left the house. Mrs. Van Pelt was allowed to go into the other bedroom where she found her husband and young son lying on the floor with their wrists taped behind their backs. Hall and the masked man were there and both had guns.

In approximately 15 or 20 minutes Engstrom returned and said he could not find the safe in the market and asked for further information. Mr. Van Pelt gave Engstrom detailed instructions on how to find the safe and Engstrom left again. The market was about four blocks away. About half an hour later a car was heard. The masked man checked to see if it was Engstrom, then he and Hall left. Mrs. Van Pelt found that their two telephones had been dismantled. Approximately two weeks later Mrs. Van Pelt positively identified Hall and Engstrom, picking each out of a police line up.

Mr. Van Pelt testified that he was the manager of the Thriftimart Market at Barrington Avenue and National Boulevard in Los Angeles. That it was through fear and without his consent that he gave the keys to the market and combination to the safe to the men. He did not see the faces of the men, but later identified Hall by his rasping voice. Van Pelt went to the market shortly thereafter that morning and observed that the lock on the office door had been opened and about $3,500 had been taken from the vault.

Joseph Murphy testified for the prosecution that he was the man with the handkerchief over his face who was at the Van Pelt home; that Hall and Engstrom were also there; that the keys to the market and combination to the safe were given to Engstrom; that Engstrom left but came back saying he couldn't open the safe; that Van Pelt talked with him about it and Engstrom left again; when he came back all three went to Murphy's apartment where the three men split the money, about $3,000.

Appeal of Engstrom. This appellant contends that (1) there was not sufficient corroboration of the testimony of the accomplice (Murphy) as required by Penal Code, § 1111, AND (2)¹ there was no evidence, direct or indirect, that appellant committed the crime of burglary. It is contended that if we eliminate the testimony of Murphy, there is no evidence as to who took the money; no evidence that Engstrom entered the market, that he took the money, or that he subsequently had possession of the money. The argument is directed to Count IV, the burglary of Thriftimart, for appellant concedes that the testimony of Murphy was corroborated as to what transpired at the Van Pelt house (Count III).

It may first be stated that it is not necessary that the stolen property be found in the possession of the defendant; in fact, it is unnecessary to prove a theft under an accusation of burglary. The statute requires evidence only that the entry be effected with the intent to steal or to commit any felony. Pen.Code, § 459; People v. Rhodes, 137 Cal.App. 385, 391, 30 P.2d 1026; People v. Taylor, 4 Cal.App.2d 214, 218, 40 P.2d 870.

Nor is it necessary 'in order to establish the defendant's guilt, that any of the witnesses should have actually seen him break and enter the premises, or should have seen him in the vicinity of the premises about the time the burglary was committed. It rarely happens that an offense, like that here complained of, can be proved by witnesses who saw and recognized the defendant in the act, and resort must, therefore, ordinarily be had to circumstantial evidence.' People v. Flynn, 73 Cal. 511, 513, 15 P. 102, 103.

'In a prosecution for burglary the evidence on which a defendant is convicted may be purely circumstantial and if substantial, as in the present case, is sufficient to support the judgment of guilty.' People v. Colletta, 100 Cal.App.2d 1, 5, 222 P.2d 922, 924. See, also, People v. Anderson, 37 Cal.App.2d 615, 619, 100 P.2d 348; Poeple v. Stewart, 113 Cal.App.2d 687, 690, 248 P.2d 768.

The test regarding corroboration required by § 1111 is stated in People v. Mac Ewing, 45 Cal.2d 218, 224, 288 P.2d 257, 260: 'The most recent decisions have in substance phrased the rule as follows: The corroborating evidence is sufficient if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the witness who must be corroborated is telling the truth. [Citations.]'

People v. Henderson, 34 Cal.2d 340, 342-343, 209 P.2d 785, 786: 'Although the corroborating evidence must raise more than a conjecture or suspicion of guilt, it is sufficient if it connect the defendant with the commission of the crime in such a way as reasonably to satisfy the fact finding body that the accomplice is telling the truth. [Citation.] The evidence of inculpatory participation need not be direct nor extend to every fact and detail. It may be circumstantial and is sufficient, even though slight, if it tend to connect the defendant with the commission of the crime. [Citations.]' The weight of corroborative evidence is a question of fact for the trier of fact to determine. 'Therefore, unless we can say that the corroborating evidence is either incompetent or is of such a character that it could not tend to connect appellant with the commission of the crime and could not reasonably support an inference of such connection, the finding of the jury on that issue cannot be disturbed on appeal. People v. McNamara, 103 Cal.App.2d 729, 738, 230 P.2d 411.' People v. Perry 123 Cal.App.2d 74, 80, 266 P.2d 515, 519.

In the instant case the independent evidence--the competent and uncontradicted testimony of Mr. and Mrs. Van Pelt--clearly tends to connect appellant with the commission of both burglaries of which he has been convicted, and to enable the trial court to accept as true the testimony of the accomplice, Joseph Murphy. Under the principles above stated, the corroboration requirements of § 1111 have been fully met.

The cases relied upon by appellant are clearly distinguishable. In People v. Sawaya, 46 Cal.App.2d 466, 115 P.2d 1001, the prosecution relied primarily and solely upon the testimony of two accomplices, and the evidence offered in corroboration consisted of testimony as to a conversation and association prior to the date of the crime. In People v. Linde, 131 Cal.App. 12, 20 P.2d 704, the purported corroborating evidence was testimony that defendant had been in the company of the accomplice two hours prior to the time of the crime, that he had previously stated that tires might be obtained at the place which was burglarized, and that a day or two after the burglary he inquired for the address of the accomplice from the latter's brother. In neither case did the corroboration testimony of itself tend to connect defendant with the commission of the offense charged.

Hall's Appeal. As to Counts III and IV, this appellant makes the contention that the identification of appellant was not satisfactorily demonstrated. Suffice to say that 'The question of identification of the perpetrator of a crime is one for determination by the trier of...