People v. Williams, Cr. 3153

• Decision Date: 28 May 1956
• Docket Number: Cr. 3153
• Citation: 141 Cal.App.2d 849,297 P.2d 759
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph E. WILLIAMS, Defendant and Appellant.

Page 759

297 P.2d 759

141 Cal.App.2d 849

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph E. WILLIAMS, Defendant and Appellant.

Cr. 3153.

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

May 28, 1956.

Henry M. Elson, Berkeley, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

DOOLING, Justice.

Appellant, Joseph E. Williams, was charged with a violation of Vehicle Code section 503 in that he took and drove a vehicle without the consent of the owner and with the intent to deprive the owner of his possession of said vehicle. He was also charged with having been convicted of three prior felonies, auto thefts, all of which he admitted. He pleaded not guilty and after a jury trial was convicted of the crime charged. He appeals from the judgment of conviction.

Appellant's first contention that the evidence is insufficient to support the verdict is without merit. The owner of the car, one Luther Upshaw, allowed his daughter, Mrs. McCauley, to use his automobile on Saturday, September 4, 1954. He did not give appellant permission to drive the car and did not know him. He described his car as a 1951 Buick, License Number 3B2671. Mrs. McCauley testified that on the afternoon of September 4, she parked the car in front of her house on Twenty-ninth Street near San Pablo Avenue in Oakland. She left the car locked with the windows rolled up. There was only one set of keys to the car and she had possession of them. The next morning the car was missing. Mrs. McCauley had given no one permission to drive it.

On L. D. Williams testified that on Saturday, September 4, at about 10:30 or 11:00 p. m. he called upon appellant Joseph E. Williams at the Ebony Plaza Hotel. This hotel was located about a block from where Mrs. McCauley parked the car in question. He and appellant drank a half a bottle of gin in appellant's room. The witness then informed appellant that he had no money with him but suggested that if appellant could 'get a way in a car' they could go to the witness' home in Richmond where he had some money. This would enable them to buy some more drinks. Appellant then left the room and returned an hour or an hour and a half later. He again left the room and was gone about twenty-five minutes. When he returned he said, 'Come on, let's go.' The witness left the hotel with appellant. The two of them entered a '51 or '52 Buick parked on the street. When the witness entered the car he noted sparks flying under the dash. The witness said to appellant: 'Joe, you are not stealing this car?' Appellant with the witness as a passenger then drove the car to Richmond. They stayed in Richmond approximately twenty-five or thirty minutes and then came back to Oakland. Appellant parked the car two or three blocks from the Ebony Plaza Hotel. The witness asked appellant why he was leaving the car there and appellant answered: 'I am supposed to leave it here.'

Police Officer Milton P. Habelt testified that on September 5, 1954, he was sent to check a 1951 Buick, License Number 3B2671 for fingerprints. It was parked on Twenty-sixth Street, just west of San Pablo Avenue. He found two prints, one on the left wind-wing and one on the rear-view mirror. He stated that the car was not 'hot-wired' (a method of by-passing the ignition so that a car may be started without the key) when he saw it although there were two or three small pieces of wire lying on the floor.

Robert M. Cooper, an assistant criminologist for the Oakland Police Department, identified the fingerprint taken by Officer Habelt from the left wind-wing as that of appellant Williams.

The owner of the car testified that after the car was returned to his daughter he noted his son-in-law fixing some wires under the dashboard. He stated that his son-in-law was trying to connect them.

There was ample evidence presented at the trial from which the jury could have found that appellant was guilty. The jury could have found that appellant gained entrance to the car through the wind-wing where his fingerprint was found and then 'hot-wired' the car in order to get it started without the key. The testimony of the witness L. D. Williams is not so unreliable and inherently improbable, as appellant contends, that it must be disregarded. Further in view of the other evidence against appellant the fingerprint evidence would seem to constitute strong evidence against him. People v. Adamson, 27 Cal.2d 478, 165 P.2d 3. A different situation was presented in People v. Flores, 58 Cal.App.2d 764, 137 P.2d 767, relied on by appellant, wherein the fingerprint evidence was held not sufficient. In the Flores case there was no other evidence connecting the defendant with the crime of grand theft of an auto and he admitted being in the stolen car, thus furnishing an explanation for the presence of his print in the car. In the instant case there is other evidence connecting appellant with the crime and he did not admit being in the car.

Appellant's next contention is that the trial court committed prejudicial error in failing to instruct the jury that a violation of Penal Code section 499b was an included offense under a charge of violation of Vehicle Code section 503. Vehicle Code section 503 provides in part: 'Any person who drives or takes a vehicle not his own, without the consent of the owner thereof, and with intent to either permanently or temporarily deprive the owner thereof of his title to or possession of such vehicle, whether with or without intent to steal the same, * * * is guilty of a felony * * *.' Penal Code section 499b provides in part: 'Any person who shall, without the permission of the owner thereof, take any automobile, * * * for the purpose of temporarily using or operating the same, shall be deemed guilty of a misdemeanor * * *.' No instruction was given or requested on this latter code section.

Although app...