People v. Tims

• Decision Date: 02 July 1959
• Docket Number: Cr. 3579
• Citation: 341 P.2d 56,171 Cal.App.2d 671
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Eddie TIMS, Defendant and Appellant.

Page 56

341 P.2d 56

171 Cal.App.2d 671

PEOPLE of the State of California, Plaintiff and Respondent, v. Eddie TIMS, Defendant and Appellant.

Cr. 3579.

District Court of Appeal, First District, Division 1, California.

July 2, 1959.

William B. Emmal, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., for respondent.

WAGLER, Justice pro tem.

Defendant was convicted by a jury of a violation of Penal Code, section 464--burglary with explosives. This section so far as pertinent provides that 'Any person who, with intent to commit crime, enters * * * any building * * * and opens or attempts to open any * * * safe * * * by use of acetylene torch * * * is guilty of burglary with explosives.'

Defendant contends: (1) that the trial court erred in the admission in evidence of certain extrajudicial statements made by him at the time of and subsequent to his arrest; (2) that the evidence was insufficient to sustain his conviction; and (3) that the trial court committed reversible error in instructing the jury.

The first witness for the People was one Harold R. Jarvis, president of Transportation Guarantee Co., which operates a truck repair business at 1835 Folsom Street, San Francisco. He testified that on Saturday, March 29, 1958, he left his place of business about 2 p. m.; that at that time the offices which were on the mezzanine floor were in proper order; that when he returned the following Monday morning the bookkeeper's office was 'turned around, desks were moved, and the safe was missing.' Also missing was a 'Kodascope 1620' motion picture projector and numerous other items of personal property.

The safe which weighed between four and six hundred pounds was later found on the ground floor, inside a newly painted furniture trailer. Near the safe were two complete acetylene torch units. Mr. Jarvis described the condition of the safe as follows: 'The hinges and the door were burned off, and all the records inside were partially burned and charred. The cash drawer [containing about $230] had disappeared altogether.' Photographs of the safe were introduced in evidence and certain discolored areas shown were described by the witness as acetylene burns.

The foregoing is all of the evidence offered to establish the corpus delicti and defendant contends that on this state of the record it was error to receive evidence of his later possession of a portion of the missing property and of his conflicting statements made in relation thereto.

Proof of the corpus delicti was of course prerequisite to the admission of the evidence in question. Defendant concedes that all of the elements of the offense charged were adequately established except the element of entry. His argument on this point, however, appears to be based entirely upon the erroneous assumption that to establish an entry one must also prove a 'breaking.' Defendant cites many cases which factually describe an actual breaking. In each case, however, the 'breaking' was only incidental to the entry.

At common law and in some jurisdictions a breaking is still one of the essential ingredients of the crime of burglary, but this rule does not prevail in California. In this state entry with the requisite intent is sufficient. People v. Barry, 94 Cal. 481, 29 P. 1026; People v. Brittain, 142 Cal. 8, 75 P. 314; People v. Ferns, 27 Cal.App. 285, 149 P. 802; People v. Descheneau, 51 Cal.App. 437, 197 P. 126; People v. Sparks, 44 Cal.App.2d 748, 112 P.2d 974; People v. Corral, 60 Cal.App.2d 66, 140 P.2d 172; People v. Jollet, 60 Cal.App.2d 245, 140 P.2d 479; People v. Vitos, 62 Cal.App.2d 157, 144 P.2d 393; People v. Garrow, 130 Cal.App.2d 75, 278 P.2d 475.

The element of entry, like any other element of the corpus delicti, need not be proved by direct, positive evidence, but may be proved by circumstantial evidence and reasonable inferences to be drawn therefrom. People v. Sparks, 82 Cal.App.2d 145, 185 P.2d 652. The circumstantial evidence here consisted in the disarray of the office and the disappearance of various articles therefrom, together with the removal of the safe to the ground floor; the damage inflicted thereon and the disappearance of the cash drawer and its contents.

The case of People v. Smith, 145 Cal.App.2d 149, 302 P.2d 63, 64, relied upon by defendant does not support his contention. The circumstantial evidence in the Smith case was much weaker than in the instant case. In Smith, the record showed that Smith was arrested with certain articles of property of one McCurdy in his possession. McCurdy testified that the articles were in his wallet which was in his trousers which he placed on a night stand in his room when he retired; upon arising the next morning he found his trousers outside the house; the wallet and the contents were missing. Smith was shown to have made conflicting claims as to how he came into possession of the articles in question. He contended on appeal, as does the appellant herein, that the missing articles could have been removed by someone who made a lawful rather than an unlawful entry. It was held, however, that '* * * it was for the jury to determine the nature of the entry made when the articles were taken and the intent with which it was made.' The same holds true here.

Since the identity of the perpetrator of the crime charged is not a part of the corpus delicti (People v. Tarbox, 115 Cal. 57, 46 P. 896; People v. Day, 71 Cal.App.2d 1, 161 P.2d 803), we must conclude that the foundation for the admission of the evidence in question was adequate. See People v. Selby, 198 Cal. 426, 245 P. 426; People v. Mason, 37 Cal.App.2d 407, 99 P.2d 567.

The record shows that all of the usual and necessary cautionary instructions on circumstantial evidence were given; the implied finding of the jury that the corpus delicti was sufficiently proved must therefore be accepted. People v. Smith, 145 Cal.App.2d 149, 302 P.2d 63, supra; People v. Dodson, 77 Cal.App.2d 389, 175 P.2d 59.

The evidence relied upon to connect the defendant with the offense in question was substantially as follows: On April 4, Inspector Merrill of the Pawn Shop Detail of the San Francisco Police Department saw the defendant carry the projector described in the previous testimony from an automobile into a pawn shop on Market Street. The inspector entered a few minutes later and asked the defendant to produce identification. Defendant thereupon presented a bank book, a social security card and a union ticket, each bearing the name of one Rudolph Berry of Martinez, California. When asked about the projector, defendant first denied having any knowledge concerning it. Later he stated that as he was passing the pawn shop on foot the proprietor thereof asked him to carry it in from the latter's car which was parked at the curb. When questioned further he stated that he had borrowed the projector at an unidentified place from a person whom he refused to name.

On April 7, defendant...