4 P.2d 971 | Cal. Ct. App. | 1931
The defendant was convicted of having committed first degree burglary and was sentenced to imprisonment in the state prison. He appeals from the judgment of conviction and from the order denying his motion for a new trial.
On the night in question the drug-store of Robert Miller, doing business as Miller Pharmacy, on Market Street near Front Street in San Francisco, was entered and a bag of money and also other articles including a flashlight, a pair of gloves, a jimmy and a towel were stolen therefrom. These facts were brought to the attention of the police on the following morning. In the meantime the defendant Basuino and one Itala Fulliaresse, his co-defendant, had been arrested between 2 and 3 o'clock A.M. when seen about two and one-half blocks from the drug-store. At the time of their arrest all of the stolen property was in their possession and Fulliaresse was carrying a loaded revolver. The defendants attempted to explain their possession of the stolen property by stating that they had broken into an automobile on the Embarcadero and taken it. The officers immediately took the defendants to the Embarcadero, but the alleged automobile from which they said the property had been taken could not be located. *160
[1] Appellant contends that the verdict is contrary to the law and the evidence. In this connection it is stated that "there is no evidence that the defendant Basuino entered the premises in question and that the only evidence against him is that he was found in company of the codefendant Fulliaresse who had the alleged stolen articles in his possession on the morning of the robbery". While it is true that there is no direct evidence to show that appellant entered the premises, it is well settled that such direct evidence is not required. As was said in People v.Flynn,
[2] Appellant is in error in stating the evidence relating to the possession of the stolen property, as it did not appear that the property was found solely on the person of appellant's co-defendant. There is some confusion in the testimony of the two police officers relating to what property was taken from the possession of each of the two defendants. Nevertheless one of the officers testified that the towel with the money wrapped in it was in the possession of appellant and that appellant attempted to pass it to his co-defendant Fulliaresse while in front of the booking desk at the police station. Whatever confusion may be said to exist in the officers' testimony relating to which of the defendants was in possession of the money, there is no conflict in their testimony to the effect that the towel was in the possession of appellant and that he attempted to pass it to Fulliaresse at the police station. The evidence was sufficient to show that some of the stolen property was in the possession of each of the defendants.
Appellant further cites and relies upon authorities to the effect that evidence of the unexplained possession of stolen property standing alone is insufficient to justify a conviction, *161 but all these authorities recognize that such possession is a circumstance that may be considered where other incriminating circumstances are shown. In the present case the evidence showed that appellant had worked for some time at the bootblack stand adjacent to the pharmacy; that he was arrested at a late and unusual hour on the night that the crime was committed at a place but a short distance from the scene of the crime; that at the time of his arrest appellant and his co-defendant had in their possession all of the stolen property and that appellant's co-defendant was armed with a loaded revolver; that while at the police station appellant endeavored to pass some of the stolen property to his co-defendant and when asked "what was the idea of passing the towel", neither defendant made any reply; that defendants were unable to authenticate their attempted explanation of the manner in which they obtained possession of the stolen property and that their story with respect thereto was entirely unworthy of belief. The foregoing brief summary shows that appellant's conviction did not rest solely upon the evidence of the possession of stolen property but rested upon evidence of such possession and evidence of other incriminating circumstances which, taken together, were ample to sustain the verdict.
[3] Appellant further contends that there was prejudicial misconduct in the remarks of the district attorney and that the trial court committed error in ruling upon his objection to said remarks. He asserts that the district attorney "told the jury in so many words that if they did not bring in a verdict of guilty they would be dishonest". In making this assertion appellant does not state the language used but places his own interpretation on the remarks of counsel. The district attorney after summing up the circumstances in evidence, stated in effect that in his opinion the evidence was such that if twelve honest friends of the defendant were called upon to act as jurors and would decide the case "fairly and squarely, according to the evidence, they would return a verdict of guilty". Counsel for appellant objected to the statement, assigned it as misconduct and requested the court to instruct the jury to disregard it. The trial court overruled the objection and stated to the jury "If counsel, in his argument, goes beyond the evidence, it is your duty, members of the jury, to disregard it." The line of argument *162
employed is not to be commended, but it is not analogous to that in People v. Hail,
The judgment and order appealed from are affirmed.
Nourse, P.J., and Sturtevant, J., concurred. *163
