People v. Ross

• Decision Date: 28 October 1953
• Docket Number: Cr. 2398
• Citation: 120 Cal.App.2d 882,262 P.2d 343
• Parties: PEOPLE v. ROSS.
• Court: California Court of Appeals Court of Appeals

Page 343

262 P.2d 343

120 Cal.App.2d 882

PEOPLE v. ROSS.

Cr. 2398.

District Court of Appeal, Third District, California.

Oct. 28, 1953.

Melvin L. Pierovich, Jackson, for appellant.

Edmund G. Brown, Atty. Gen., Doris H. Maier, Deputy Atty. Gen., for respondent.

VAN DYKE, Presiding Justice.

The appellant was convicted of burglary in the second degree and, after denial of his motion for a new trial, was sentenced to imprisonment in San Quentin, where he is now incarcerated. He appeals from the judgment entered upon the jury's verdict and from the order denying a new trial on the grounds that the wholly circumstantial evidence is insufficient to sustain the verdict and that prejudicial error resulted from alleged misconduct of the district attorney and from the trial court's abuse of discretion in denying his motion for a new trial.

The commission of the burglary is undisputed. Between the hours of 4:30 p. m. on Wednesday, April 16, 1952, and 6:30 a. m. on Thursday, April 17, 1952, the Amador County High School was broken into and $42 stolen from a safe in the main building, to which entrance had been gained by prying open a window with some heavy instrument. The only clues found were hammer marks on the safe and a steel claw, apparently broken off from a hammer or crowbar used to 'jimmy' the window. The evidence supports the following recital of facts:

Late on the following Saturday night, April 19, 1952, a deputy sheriff of Sacramento County observed appellant and three companions drive up behind the rear of buildings in the Town and Country Village on the outskirts of the City of Sacramento. He inquired as to what they were doing and was informed they had turned off the road by mistake. Upon request, appellant willingly opened the trunk of his car in which were found a number of tools which appellant said were his and used in his employment as a roofer. Among these was a hammer, which was proven to have made the marks found on the rifled school safe, and a crowbar with a prong broken off. The steel claw found at the scene of the crime fitted the break perfectly. Appellant and his companions voluntarily submitted to arrest and were confined in the county jail, where, on the following Monday morning, April 21, 1952, appellant, without being advised as to why he was apprehended or of what he was suspected, was interrogated. He again admitted ownership of all the tools found in his car and maintained that he had never loaned them to any one and that his car was never driven by any one other than himself and his wife except on one occasion when it was borrowed for about one-half hour by Everett Gibson who was one of appellant's companions at the time of his arrest. Appellant alone was charged with burglarizing the Amador County High School. At his trial he repudiated his former statements and corroborated the testimony of the aforementioned Gibson that he borrowed appellant's tools on Tuesday, April 15, 1952, and replaced them in his car on Saturday, April 19, 1952, while appellant was in a barbershop just shortly before they left Monterey for Sacramento where they were apprehended that evening. Appellant claimed that he made his prior contradictory statements when he was not charged with any crime and under the belief that it would expedite his early release from custody.

Appellant sought to prove alibi. He introduced evidence that he was a resident of Monterey County and was there employed by his brother for whom another brother also was a roofer. The Amador County High School is approximately 194 miles distant from appellant's place of abode and employment. Data on records kept in the usual course of business supported the testimony of appellant's two brothers and his foreman, who was not a relative, that appellant worked in Monterey ten hours each day on April 16 and 17, 1952, and nine hours on April 18th. Appellant's wife testified that he returned from work on April 16, 1952 at about 6 p. m. and remained home until the following morning when he left for work at about 6:00 o'clock. One of appellant's brothers testified that between 7:00 and 8:00 o'clock on the night of April 16, 1952 he was with appellant at his house listening to a radio broadcast of a prizefight. Appellant's paycheck for the week of April 14th-18th, which was endorsed in his name and cashed in Monterey on or before April 19th, was introduced in evidence. The brother for whom appellant worked testified that the amount thereof, $89.90, was for 39 hours straight time at $2.75 an hour and six hours at time and one-half, less $17.10 for tax deductions and $25 for an advance previously made to appellant.

Appellant contends that, as a matter of law, in view of the foregoing evidence that he was in Monterey County between 4:30 p. m. on April 16, 1952 and 6:30 a. m. on April 17, 1952, the jury could not find 'beyond a reasonable doubt' that he was in Amador County between those hours, and, therefore, they were compelled to find that his alibi was established and that the circumstantial evidence was insufficient to warrant his conviction. But, as stated in People v. Huizenga, 34 Cal.2d 669, 675-676, 213 P.2d 710, 713,

'* * * This contention confuses the function of court and jury by implying that if the court itself can formulate a reasonable theory of innocence from the evidence it must reverse a judgment of conviction. It is not for the court, however, to determine whether it can formulate such a theory. It must assume in favor of the verdict the existence of every fact that the jury could reasonably deduce from the evidence and then determine whether or not a reasonable jury could find the defendant guilty beyond a reasonable doubt. * * * Thus, 'the rule that the circumstances relied upon by the prosecution must be consistent with guilt and inconsistent with an 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. Newland, supra, 15 Cal.2d , at page 682, 104 P.2d , at page 780.

"The functions of the jury include the determination of the credibility of witnesses, the weighing of the evidence, and the drawing of justifiable inferences of fact from proven facts. It is the function of the judge to deny the jury any opportunity to operate beyond its province. The jury may not be permitted to conjecture merely, or to conclude upon pure speculation or from passion, prejudice or sympathy. The critical point in this boundary is the existence or non-existence of a reasonable doubt as to guilt. If the evidence is such that reasonable jurymen must necessarily have such a doubt, the judge must require acquittal, because no other result is permissible within the fixed bounds of jury consideration. But if a reasonable mind might fairly have a reasonable doubt or might fairly not have one, the case is for the jury, and the decision is for the jurors to make. The law recognizes that the scope of a reasonable mind is broad. Its conclusion is not always a point certain, but, upon given evidence, may be one of a number of conclusions. Both innocence and guilt beyond reasonable doubt may lie fairly within the limits of reasonable conclusion from given facts. The judge's function is exhausted when he determines that the evidence does or does not permit the conclusion of guilt beyond reasonable doubt within the fair operation of a reasonable mind.' Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, 232.'

Respondent maintains that under the foregoing rule the jury could reasonably have found appellant guilty beyond a reasonable doubt since the crowbar and a hammer found in appellant's possession at the time of his arrest are admitted to be tools used in the...