People v. Wilkes

• Decision Date: 10 June 1955
• Docket Number: Cr. 5713
• Citation: 284 P.2d 481,44 Cal.2d 679
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Oscar Leen WILKES and Lewis Edward Jones, Defendants and Appellants.

Page 481

284 P.2d 481

44 Cal.2d 679

The PEOPLE of the State of California, Plaintiff and Respondent, v. Oscar Leen WILKES and Lewis Edward Jones, Defendants and Appellants.

Cr. 5713.

Supreme Court of California, In Bank.

June 10, 1955.

Rehearing Denied July 6, 1955.

Carl B. Shapiro, Fairfax, for appellants.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., W. O. Weissich, Dist. Atty., and Roger P. Garety, Chief Criminal Deputy Dist. Atty., San Rafael, for respondent.

SCHAUER, Justice.

Defendants appeal from judgments of conviction of burglary of the second degree, pursuant to jury verdicts, and from an order denying their motion for new trial. We have concluded that defendants were deprived of their right to have the evidence fairly appraised by the jury because of improper comment of the prosecuting attorney, the effect of which was made more serious by comment of the trial judge, as to the failure of the wife of defendant Wilkes to testify.

The evidence of guilt, which is circumstantial, is as follows: At about 3:30 a. m. on January 31, 1954, the night bartender at the Village Inn in Novato, Marin County, after having cleaned the premises, put cash and checks in the safe, and locked the safe and the doors and windows, left the building. At 7 a. m. the day bartender came to the Village Inn and found that the outside side door and the door leading to the room in which the safe and the liquor were had been forced open. The dial and other parts had been knocked off the safe, the door was ajar, and boxes in which money and checks had been kept in the safe were on the floor. Plates and a spindle which had been part of the safe lock were lying inside the safe. On the floor near the safe were chips of paint. About $1,674 in cash and about a case and a half of whiskey had been taken. An officer who examined the doors which had been broken open, the safe and the boxes which had been in it, and a file cabinet which was in the room, found only old, smudged fingerprints, no fresh prints.

At about 1 a. m. on February 1, 1954, a deputy sheriff on patrol in a residential district of Fresno about two and one-half miles from Highway 99 found defendants asleep in the 1953 Chevrolet automobile of defendant Jones. The deputy summoned other officers. They awakened defendants, questioned them, and examined their car. Defendants were taken to the sheriff's office and questioned further.

As will hereinafter appear, there are numerous conflicts among defendant's various extrajudicial statements, their testimony at the preliminary hearing, and their testimony at the trial. As to one point their testimony and statements are consistent: that they were not in Novato at or near the time of the burglary.

At the time of defendants' arrest a pair of grip pliers with draft punch attached was found in Jones' car. Just after their arrest both defendants denied ownership of these instruments. At the trial Wilkes testified that he had never seen them before the preliminary hearing; Jones testified that they were first shown to him by one of the Fresno deputies and that to his knowledge they had not been in his car. In the opinion of an expert this punch had made marks on the spindle which was removed from the safe; this opinion was based on the distinctive similarity between the lines in marks made by the punch and the lines in tool-marks on the spindle.

In the car was a tire iron which Jones at the time of his arrest admitted was his. At the trial, however, he testified that it had not been in his car. An expert testified that on the tire iron were chips of paint which had been transferred there under pressure; this paint was in layers of three distinct colors which were identical with chips of paint found at the scene of the crime.

In Jones' car were San Francisco newspapers dated January 27 and 30 and February 1, 1954. According to defendants, they bought the paper of February 1 in Bakersfield but had no knowledge of the other two papers.

The Fresno deputies found two boxes of washers in the car, one on the floor and one in a suitcase in the trunk. At the time of his arrest Wilkes said he had brought the washers from Arkansas. A Novato storekeeper identified the box from marks made on it during inventory as one which had been in his store shortly after the first of 1954. Wilkes testified at the trial that he was not shown the washers in Fresno, that he may have then stated that if there were washers in the car he may have put them there, but that he did not have washers in his suitcase.

Defendants when they were arrested had in their possession only about $370 and no whiskey.

Defendants' testimony at the trial is as follows: Defendant Jones, a resident of Texas, and defendant Wilkes, a resident of Arkansas, left Arkansas in Jones' car on the evening of January 25, 1954. Wilkes is a brick mason. Jones had sold his hauling business. They came to California to look for construction work. They entered California from Nevada at Truckee on the evening of Friday, January 29, drove through Sacramento, Stockton, Fresno, and Bakersfield, and arrived in Los Angeles late on the morning of Saturday, January 30. Wilkes telephoned the brick masons' union and was told that there was a scarcity of brick work in Los Angeles but that there might be work available east of Los Angeles. It is not usual for union construction jobs to operate on Saturday, but defendants drove around looking for such jobs. They found no work.

At about 5 p. m. on the 30th defendants went into a bar in Los Angeles and stayed there until about 1 a. m. In the bar they met two women. Defendants left the bar in the company of the women and went to their apartment. They left the apartment at about 6 a. m. on Sunday, January 31. Defendant Wilkes then telephoned his wife in Arkansas from a public telephone booth. Mrs. Wilkes was defendant Jones' sister. Jones also talked to her. At about 8 a. m. defendants went to the apartment of Wilkes' mother and step-father. They left there before 10 a. m. At about noon they arrived in Bakersfield and rented a cabin at a motel. Wilkes registered under the name 'J. L. Wright'; he testified that he did not know why he did this. Defendants were in Bakersfield until about 8 p. m. on Monday, February 1. While there they bought a San Francisco newspaper of February 1 for they intended to go to San Francisco to look for work. They went to Fresno, with Wilkes driving; Jones was asleep; Wilkes became sleepy, stopped, and also went to sleep. Defendants were awakened by the deputy sheriffs.

Shortly after defendants' arrest Jones stated that they were in Arizona on the night of January 30, 1954, that they entered California on Highway 66 and stayed in Bakersfield on the night of the 31st; Wilkes also stated that they had entered California on Highway 66 and arrived an Bakersfield on January 31. Later Jones told a deputy sheriff of Marin County that he had not been in California during the month of January, 1954. At the trial Jones denied that he had made the statement that defendants had entered California on Highway 66 and the statement that he was not in California during January.

The mother of defendant Wilkes testified in accord with defendants that they visited her in her Los Angeles apartment shortly after 8 a. m. on the morning of January 31. At the time of defendants' visit, she testified, she and her husband had lived in the apartment for about a week. The manager of the apartment house, however, testified on rebuttal that Wilkes' mother and stepfather did not move into the house until February 23.

The foregoing summary of the evidence shows the untenability of defendants' claim that the evidence against them is weak. Evidence of guilt is furnished by their unexplained possession of burglarious tools which, according to expert testimony, were used to commit the crime (see People v. Godlewski (1943), 22 Cal.2d 677, 685, 140 P.2d 381) and their contradictory (and therefore in part necessarily false) accounts to the authorities of their whereabouts in California, which may be considered as showing consciousness of guilt (see People v. Cole (1903), 141 Cal. 88, 90, 74 P. 547; People v. Peete (1921), 54 Cal.App. 333, 353, 202 P. 51). The evidence of consciousness of guilt is dramatically supplemented (if the rebuttal testimony of the landlord of Wilkes' mother is believed) by the showing that the mother's corroboration of defendants' alibi was fabricated.

Wilkes asserts that the prosecuting attorney, in violation of the rule that a witness may be impeached by showing a prior conviction of felony but not of misdemeanor (Code Civ.Proc. § 2051; People v. White (1904), 142 Cal. 292, 294, 75 P. 828), improperly asked him on cross-examination concerning his conviction of the misdemeanor of criminal contempt (Pen.Code, § 166) founded on Wilkes' conduct while he was on the stand at the preliminary hearing. The record of the trial shows that the prosecuting attorney did not ask Wilkes about a conviction of criminal contempt. He asked whether Wilkes had not refused, at the preliminary hearing, to answer concerning his whereabouts between 7 and 10 a. m. on Sunday, January 31, a time which was shortly after the burglary was committed in Novato and which was when Wilkes had testified at the trial that he was with his mother in Los Angeles. Objection to this question was correctly overruled; Wilkes' refusal to testify at the preliminary hearing could be shown for the purpose of impeachment (see People v. Montgomery (1941), 47 Cal.App.2d 1, 21, 117 P.2d 437). Wilkes answered that he had refused to testify, and explained that he had taken the stand at the preliminary hearing against the advice of his attorney because 'I had nothing to hide' but that he refused to state where he was on Sunday morning, January 31, because, although he had tried to give the authorities such information as he...