People v. Tittle

• Decision Date: 31 January 1968
• Docket Number: Cr. 375
• Citation: 258 Cal.App.2d 518,65 Cal.Rptr. 576
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Bruce TITTLE and George Richard Ellsworth, III, Defendants and Appellants.

Page 576

65 Cal.Rptr. 576

258 Cal.App.2d 518

PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Bruce TITTLE and George Richard Ellsworth, III, Defendants and Appellants.

Cr. 375.

Court of Appeal, Fifth District, California.

Jan. 31, 1968.

Bert M. Carner, Jr., Charles K. Brunn, Modesto, for appellants.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Daniel J. Kremer, Deputy Atty. Gen., Sacramento, Alexander M. Wolfe, Dist. Atty., Modesto, for respondent.

CONLEY, Presiding Justice.

The defendants, Ronald Bruce Tittle and George Richard Ellsworth, III, were convicted by a jury of the crime of burglary. They appealed from the convictions on the ground, as they claim, that the evidence was insufficient. No argument is made that the trial court erred in any ruling on the evidence or in giving instructions.

As so frequently happens in proof of a crime of stealth like burglary, the conviction depends on circumstantial evidence. (People v. Jordan, 204 Cal.App.2d 782, 786--787, 22 Cal.Rptr. 731; People v. Huber, 225 Cal.App.2d 536, 541, 37 Cal.Rptr. 512.) That in itself is no valid objection to a conviction.

It must be remembered in connection with the appeal that the appellate court is not the trier of fact and does not have to be convinced of a defendant's guilt to a moral certainty and beyond all reasonable doubt. As is said in People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 779:

'The rule applicable where there is evidence, circumstantial or otherwise (is) * * * as follows: The court on appeal 'will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt. For it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury * * * can be set aside on appeal upon the ground' of insufficiency of the evidence, 'it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. * * * We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.' If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.'

Insofar as proof of the corpus delicti is concerned, there cannot be the slightest doubt that the burglary was committed by someone. (People v. Jordan, supra, 204 Cal.App.2d 782, 22 Cal.Rptr. 731.) The burglarized house was the residence of Harry and Flora Burkett, located at 1505 Florida Avenue in Modesto. The Burketts were absent from home at Thanksgiving time (November 24, 1966). A window near the back door of the residence was broken, and a long list of personal property was stolen from the residence and from the neighboring garage for which a key had been left in the kitchen of the home. While the owners of the house had been absent for a short time, their daughter, Vernal Oliphant, visited it every day and the time of the burglary was thus fixed grossly at sometime after one of her visits, as between 11 a.m. on November 23 and and 8:30 a.m. on November 24, when Officer Stewart arrived at the residence. The appellants contend that the circumstantial evidence in the case, which they denominate as a 'mass of evidence,' is so weak and inconclusive (People v. Hall, 62 Cal.2d 104, 112, 41 Cal.Rptr. 284, 396 P.2d 700; Witkin, Cal.Crim.Proc., § 685, pp. 669) that a jury could not possibly have been convinced of their guilt beyond a reasonable doubt. We do not view the record in the same light; on the contrary, it seems to us that, as in a jig-saw puzzle, when the various pieces are put together they present convincing proof of the criminal responsibility of the two defendants.

The principal items of evidence connecting Title and Ellsworth with the offense consist of the facts proven in connection with the approach of the burglars to the scene of the crime. The house in question is in a relatively rural section of the City of Modesto set off some distance from other homes and with some bare land and a family orchard located in connection with it. On the night in question, it had been raining sporadically, and there was copious mud in the vicinity which yielded clear footprints. The boots of the defendant Tittle and the shoes of the defendant Ellsworth were in the possession of the police and yielded clear evidence with respect to footprints in the neighboring mud. These prints were in two distinct lines going to and coming from the house in question and showing that two burglars had been present, one of whom wore boots comparing favorably with the boots of Tittle, and the other shoes, which again were consistent with the shoes worn that night by Ellsworth. Perhaps most significant of all, some of the footprints showed that, in connection with the boots, there was imprinted in the mud the rather unusual tag which actually was present on Tittle's boots showing the words 'Biltrite,' 'Neuron Crepe,' and 'Made in U.S.A.' No one possessing a fair state of mind, when advised of the other factors discussed herein, could well escape the conclusion that it was Title and Ellsworth who had left the roadway and entered the house and garage in question. It was necessarily conceded that Tittle and Ellsworth had been in the general vicinity in Tittle's automobile at the time of the burglary, although no one saw them in the immediate neighborhood of the Burkett house.

There was further extensive evidence by a competent criminalist of the State of California that soil samples taken from the inside of Tittle's automobile, from a flashlight in that car, from the steps of Tittle's home after he had returned there, from the boots and shoes worn by Tittle and Ellsworth, were entirely consistent with the soil in the area of the Burkett home; these samples looked alike and had the same general composition, characteristics and structure. The flower bed at the rear of the house where the window was broken to permit entrance by the burglars contained some of the footprints presumably made by the boots and shoes above referred to.

Early on Thanksgiving morning, at about 5:50 a.m., Richard Fernandez of the Modesto Police Department, while patrolling his beat in a police car, observed a white Cadillac automobile on College Avenue just above Stoddard in Modesto some 15 blocks from the scene of the burglary. The Cadillac...