THE PEOPLE, Plаintiff and Respondent, v. SAM BROCK, Defendant and Appellant
Crim. No. 10694
In Bank
May 5, 1967
Appellant‘s petition for a rehearing was denied May 31, 1967, and the opinion was modified to read as printed above.
66 Cal. 2d 645
The order setting aside the indictment and dismissing the action is affirmed as to both defendants.
Traynor, C. J., McComb, J., Peters, J., Tobriner, J., and Burke, J., concurred.
Philip L. Grauman as Amicus Curiae on behalf of Defendant and Appellant.
Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, Edward P. O‘Brien, Frank C. Damrell and Timothy A. Reardon, Deputy Attorneys General, for Plaintiff and Respondent.
PETERS, J.—A jury found defendant guilty of two charges of burglary in the second degree (
On May 29, 1965, about 12:20 p.m., a car belonging to Bernard Krause was burglarized while parked at 1255 Market Street in San Francisco. A brief case belonging to Stanley Karatz was taken from the car.
Sometime between noon on Sunday, May 30, 1965, and 8 a.m. the following day the property clerk‘s office at the Hall of Justice in San Francisco was burglarized. On the door were marks similar to those made by a jimmy and the bolt was sawed off. The doors leading to thе office had been washed three or four days earlier with a cleanser, and the washing was of such a nature that it removed all fingerprints. Defendant‘s finger and palm prints were found on the doors. Part of a broken hacksaw blade was also found by the police.
At 1:15 a.m. on June 2, 1965, Officer DeBrunn observed defendant and another man walking down Sixth Street toward the Hall of Justice. As he was walking defendant was moving his head from left to right. There were a number of automobiles parked on the street. On a prior occasion, the officer had arrested defendant upon seeing him smash a car window with a brick. The charge was dismissed after the automobile owner, an out-of-state student, was unable to appear in court. The officer was aware that there had been a large number of automobile burglaries in the general area and that defendant had been arrested twice when observed removing large quantities of clothing from motels. He had stopped defendant numerous times in the same area and, without excep-
The officer, who was in a marked police car, called to defendant and asked if he could talk to him. After defendant came over to the car, the officer asked defendant where he was going and where he was now living. Defendant said he lived with his companion, that he was going home, that he had just moved there, and that he did not know the address. The companion said he lived at 111 Mason Street.
When the officer said to defendant, “Sam, you‘re going in the wrong direction,” defendant replied, “I lied to you, . . . I‘m going to see a couple of girls.” He stated that he did not know where the girls lived but would “have to look for it.”
After the officer asked defendant what the latter had in a paper bag he was holding, defendant dropped the bag and said, “What bag?” As the bag hit the pavement there was a “clank,” and the officer saw a pry bar protruding from it. At this point the officer warned defendant that he did not have to answer any questions, that anything defendant said could be used against him, and that he had a right to an attorney.
The officer picked up the bag and found a hacksaw, a file, and the pry bar, tools which are commonly used in burglaries. In response to questions defendant said that he used the tools when working on automobiles, that he had recently obtained the job, and that he did not know the name of his employer. The officer arrested defendant and took him to the police station.
On June 2, 1965, a police officer, who had learned that the fingerprints on the property clerk‘s door were defendant‘s, called the Grand Central Hotel where defendant had a room paid for through June 3d. The landlady refused the officer admittance to the room, and the officer told her that no one was to enter defendant‘s room.1 Defendant had rented the room on May 27 for a week, and after his tenancy expired the officer asked the landlаdy on June 4 if he might now search the room. The landlady consented to the officer‘s entry into the room. Inside the room the officer found a hacksaw holder,
On July 7, 1965, an information was filed charging defendant with the burglary at the Hall of Justice, and a trial on this charge resulted in a hung jury in August of 1965. Thereafter, on motion of the district attorney, this charge was consolidated for trial with an information filed on July 12 charging burglary of the automobile. It is from the judgment of conviction entered in that trial that this appeal is taken.
The defendant first challenges certain instructions given by the trial judge. In instruction No. 20 of the 23 instructions the trial judge stated: “By the Constitution of this State a judge of this court presiding in a trial of an action is authorized within proper bounds to comment on the evidence and the testimony and credibility of any witness. It is the opinion of this Court, based on the evidence, that the guilt of the defendant Sam Brock as to both of the offenses here charged, has been established beyond a reasonable doubt. I would caution you, however, that it is your right and your duty to exercise the same independence of judgment in weighing my comment on the evidence as you are entitled to exercise in weighing the testimony of the witnesses and the arguments of counsel. You will keep in mind that you are the exclusive judges of the credibility of the witnesses and of all questions of fact submitted to you. Such authority as the Trial Judge has to express his personal thought on any of these matters is confined to the sole purpose of aiding you in arriving at a verdict and may not be used, and it is not used in this case, to impose his will upon you or to compel a verdict.” (Italics added.)
These instructions amounted to a directed verdict, and the giving of them was error.
Section 7 of article I of the
Section 19 of article VI of the
The 1934 amendment obviously made a fundamental change as to the right of a trial judge to comment. The purpose of the amendment was to place in the trial judge‘s hands more power in the trial of jury casеs “and make him a real factor in the administration of justice in such cases, instead of being in the position of a mere referee or automaton as to the ascertainment of the facts.” By reason of his training in analyzing testimony, and experience in determining the credibility of witnesses, a trial judge is in a position to assist the jurors in determining what evidence has a bearing on the disputed issues in the case and to aid them in weighing the evidence, and comments which will so assist the jury are of substantial value and should not be discouraged. (People v. Ottey, 5 Cal.2d 714, 722-726 [56 P.2d 193].)
A judge‘s power to comment on the evidence, however, is not unlimited. (People v. Dail, 22 Cal.2d 642, 658 [140 P.2d 838]; People v. Patubo, 9 Cal.2d 537, 543 [71 P.2d 270, 113 A.L.R. 1303]; People v. Ottey, supra, 5 Cal.2d 714, 724.)
In commenting on the evidence the judge may not withdraw material evidence from the jury‘s consideration or distort the testimony. (See People v. Scott, 53 Cal.2d 558, 564 [2 Cal.Rptr. 274, 348 P.2d 882] (overruled on other grounds, People v. Morse, 60 Cal.2d 631, 649 [36 Cal.Rptr. 201, 388 P.2d 33]); People v. Friend, 50 Cal.2d 570, 577 [327 P.2d 97].) Although a judge is nоt required to comment on all of the evidence, he should be cautious in exercising the comment power with a view to protecting the rights of the defendant (People v. De Moss, 4 Cal.2d 469, 477 [50 P.2d 1031]), and it is error where in the guise of commenting on the evidence the judge makes statements which contain an erroneous view of the applicable law. (People v. Dail, supra, 22 Cal.2d 642, 656-659.)
The judge may not in the guise of comment control the verdicts by a direction either directly or impliedly made. (United Brotherhood of Carpenters & Joiners v. United
The federal courts have held that it is improper for a trial judge to state that he believes the defendant guilty, unless the undisputed evidence establishes guilt. (United States v. Murdock, supra, 290 U.S. 389, 393-394 [78 L.Ed. 381, 384-385, 54 S.Ct. 223]; United States v. Woods, 252 F.2d 334, 336 (and cases cited).) And it has been stated that the power to comment does not give the trial judge the right to determine in his own mind the facts upon which guilt or innocеnce depends and to make it clear to the jury that he is convinced of the defendant‘s guilt. (People v. Farnum, 242 Cal.App.2d 310, 315 [51 Cal.Rptr. 327].)
It is clear from the language of our Constitution that the comments authorized are those which in the court‘s opinion are “necessary for the proper determination of the case.” In our system of a jury trial, the judge instructs the jury that in determining the question of guilt or innocence a number of preliminary determinations must be made. The judge sets forth what preliminary determinations must be made, and also gives the jurors a number of instructions to aid them in making such determinations.
The vice of a general comment on guilt without discussion of the evidence is that it does not aid the jury in applying the instructions on the law to the evidence in the case but to the contrary рrovides for the jury a means to avoid the preliminary determinations called for by the instructions on the law and instead to rely on the words of the judge in returning a conviction. This is not the kind of comment contemplated by the constitutional provision. Rather than aiding the jury in properly considering the case, such a comment may prevent it from doing so.
By requiring the court to inform the jurors that they are the exclusive judges of all questions of fact submitted to them, the constitutional provision makes it abundantly clear that the purpose of the provision was not to create a means by which the jurors could avoid the responsibility of determining the facts and, under proper instructions on the law, the ultimate question of guilt. Yet, a general comment on the issue of guilt without discussion of the evidentiary basis for the comment may lead the jurors to abdicate their awesome responsi-
Moreover, the comment before us suggests that if the jury sees fit the case may be decided on the basis of the judge‘s comment without regard to the evidence in the case. The judge told the jury it had the “right” and “duty to exercise the same independence of judgment in weighing my comment on the evidence as you are entitled to exercise in weighing the testimony of the witnesses . . . .” Apparently, the judge intended to advise the jury that it could reject his views, but the language used unfortunately also conveys the idea that his commеnt is on a par with the testimony and subject to the same independence of judgment in determining the case. The danger that the jury may have viewed the comment in the latter sense may not be minimized. The jury is ordinarily aware that the judge has participated in numerous trials and dealt with the attorneys in the past and that numerous matters regarding the case have taken place in the presence of the judge but outside the presence of the jury. In these circumstances there is a great danger that a jury which may wish to escape its responsibility to determine the facts will give weight to the comment of the judge without considering the evidence and the instructions.
The Attorney General relies upon the following statement from People v. Friend, supra, 50 Cal.2d 570, 578; “The extent to which а judge is free to comment on the evidence is shown by the fact that it has frequently been recognized that a judge may express his opinion as to the guilt or innocence of the defendant, so long as the province of the jury as defined by the constitutional section is not invaded. People v. Rupp, 41 Cal.2d 371, 383 [260 P.2d 1]; People v. Daugherty, 40 Cal.2d 876, 893 [256 P.2d 911]; People v. Dail, 22 Cal.2d 642, 658-659 [140 P.2d 828]; People v. Warren, 16 Cal.2d 103, 114 [104 P.2d 1024]; People v. Eudy, 12 Cal.2d 41, 47 [82 P.2d 359]; People v. Ottey, 5 Cal.2d 714, 729 [56 P.2d 193]; People v. Yokum, 145 Cal.App.2d 245, 258 [302 P.2d 406]; People v. Huff, 134 Cal.App.2d 182, 187 [285 P.2d 17]; Pomerantz v. Bryan Motors, Inc., 92 Cal.App.2d 114, 119 [206 P.2d 440]; People v. Busby, 40 Cal.App.2d 193, 202 [104 P.2d 531].]”
So far as appears from the reports of the cases, neither Friend nor any of the cases there cited upheld a comment by the trial judge that a defendant was guilty beyond a reason-
The appellate court decisions cited in Friend for the right to comment on guilt or innocence also factually do not support the right to make the comment made in the instant case. In People v. Huff, 134 Cal.App.2d 182, 185 et seq. [285 P.2d 17], the conviction was reversed because the trial judge‘s comments were argumentative. Pomerantz v. Bryan Motors, Inc., 92 Cal.App.2d 114, 119 [206 P.2d 440], was a civil case, and the matter complained of was a comment that one of two witnesses who gave conflicting testimony was guilty of perjury without indicating which was the guilty party. In People v. Yokum, 145 Cal.App.2d 245, 256-258 [302 P.2d 406], the court commented at length on the evidence rеlating to the defense of self-defense and concluded that upon his evalua-
In Friend, which involved a penalty trial, the court‘s comments were tied closely to specific evidence in the case, pointing up certain factuаl matters, some of which were favorable to the prosecution and others favorable to the defense, and the trial judge did not tell the jury that it should impose the death penalty.
In one of the cases decided after Friend, the trial judge had stated that it appeared that the defendants committed either robbery or grand theft. This was approved but this was done in a case where the testimony of the defendants themselves admitted commission of a theft, disputing only robbery. (People v. Williams, 235 Cal.App.2d 389, 402-403 [45 Cal.Rptr. 427].) In the circumstances presented the judge‘s comment was not unfavorable to the defendant, and the comment made was in accordance with the federal rule discussed above. Other cases decided after Friend did not involve a general comment that the defendant was guilty, although some of the oрinions quoted the language from Friend set forth above. In such cases the trial judge merely discussed and analyzed the evidence. (People v. Ivy, 244 Cal.App.2d 406, 411-412 [53 Cal.Rptr. 47]; People v. Welborn, 242 Cal.App.2d 668, 674-677 [51 Cal.Rptr. 644]; People v. Farnum, supra, 242 Cal.App.2d 310, 312-315; People v. Schwenkner, 191 Cal.App.2d 46, 52 et seq. [12 Cal.Rptr. 408].)
So far as appears, no California case has upheld a trial judge‘s comment like the one involved here. The federal courts, as we have seen, have refused to permit a general comment except where the evidence is undisputed. The comment does not help the jury to perform the duties given to it by the instructions. The harmful effects of such a comment are obvious, and we are satisfied that the constitutional provision was not intended to permit such comments.
The statement in Friend and the other cases that a judge “may express his opinion as to the guilt or innocence of the defendant” should be understood as meaning that proper comments of the
The erroneous comment of the trial court requires reversal of the judgment. As to the conviction of burglary of the automobile, the record shows only possession of stolen goods a few days after the burglary without satisfactory explanation. (Cf. People v. McFarland, 58 Cal.2d 748, 754-760 [26 Cal.Rptr. 473, 376 P.2d 449].) The first trial as to the burglary at the Hall of Justice resulted in a hung jury. As to neither charge is the evidence overwhelming, and in view of the highly prejudicial nature of the court‘s comment, we are satisfied that the comments constituted prejudicial error. (
Defendant also urges that the motion by the prosecution to consolidate the cases for trial after there had been a hung jury in one of the cases was an attempt to prejudice his defense in such case and that the court erred in granting the motion.
Joinder of related charges, whether in a single accusatory pleading or by consolidation of several accusatory pleadings, ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials (cf. Kellett v. Superior Court, 63 Cal.2d 822, 825-827 [48 Cal.Rptr. 366, 409 P.2d 206]), and in several respects separate trials would result in the same factual issues being presented in both trials. The search of defendant‘s room produced evidence relating to each of the charged burglaries, and the circumstances of that search were of substantial importance in a trial relating to either of the charges.
Defendant claims that the search of the hotel room and its contents was unlawful. The evidence as to this issue is in some respects conflicting, and it may be that on the retrial there will be further evidence as to the scope of the landlady‘s consent. Under the circumstances, it is not appropriate for us to attempt to guide the trial court, for purposes of a retrial, on this matter.
The judgment is reversed.
Traynor, C. J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
McCOMB, J.—I dissent, I would affirm the judgment for the reasons expressed by Mr. Justice Agee in the opinion prepared by him for the Court of Appeal, which opinion reads, as follows:
In action 65627 defendant was charged by information with burglary (
In action 65648 defendant was charged by information with burglary, in that on or about May 29, 1965, in San Francisco, he entered the automobile of Stanley Karatz, when the doors thereof were locked, with the intent to commit theft.
In a jury trial concluded on September 8, 1965, defendant was convicted of second degree burglary in both actions.
The first point raised by defendant on appeal is that material evidence against him was obtained by an unlawful arrest.
Legality of Arrest
On June 2, 1965, about 1:15 a.m., Officer De Brunn of the San Francisco Police Department saw defendant-appellant and another man walking down Sixth Street near Howard Street, in San Francisco.
In fact, the officer had on a prior occasion chased and arrested appellant upon seeing him smash a car window with a brick. On that occasion, the appellant was wearing black stockings over both hands and had a screwdriver and coathanger on his person. The officer testified that these are implements customarily used in gaining entrance to automobiles when the windows are rolled up and the doors locked.
At the time in question automobiles were, as usual, parked on Sixth Street for the night. The officer testified that there had been a large number of auto burglaries in this district and that appellant, as he was walking along, was moving his head from side to side and looking around.
The officer was in a marked patrol car. He called to appellant by name and asked if he could talk to him. Appellant came over to the car. The officer asked him what he was doing and where he was now living. Appellant replied that he lived with “my friend,” pointing to the man with him, and that he was going home. Appellant said that he had just moved there and did not know the address. The friend said he lived at 111 Mason Street.
The officer thereupon said to appellant, “Sam, you‘re going in the wrong direction.” Appellant replied, “I lied to you, . . . I‘m going to see a couple of girls.” He stated that he did not know where the girls lived but would “have to look for it.”
The officer then asked appellant what he had in the paper bag he was holding. Appellant dropped the bag and said, “What bag?” When the bag hit the pavement there was a “clank” and it fell over. The officer then saw about three inches of a pry bar protruding out of the end of the bag.
At this point the officer warned appellant that he did not have to answer any questions, that anything he said could be
The officer picked up the bag and found inside a hacksaw, a file, and the pry bar.3 Appellant stated that they were his and that he used them on his job. When asked where he worked, appellant replied that it was automobile work but that he had just gotten the job and “I don‘t know the name.”
The officer thereupon arrested appellant for illegal possession of burglar‘s tools. (
The undisputed evidence is that the tools which appellant had in his possession (in the presence of the arresting officer) were commonly used as “burglar‘s tools.” However, there is no violation of
It is now well settled in California that a peace officer may make a lawful arrest without a warrant when circumstances exist that would cause a reasonable person to believe that a misdemeanor has been committed in his presence. (Coverstone v. Davies, 38 Cal.2d 315, 320 [239 P.2d 876].)
As stated in Farnsworth v. Cote, 199 Cal.App.2d 762, 767 [19 Cal.Rptr. 45], the decisive factor is whether “[a] reasonable person confronted by the scene which the officers viewed could have an honest and strong suspicion of appellant‘s guilt of a violation of [a designated misdemeanor].”
Moreover, as stated in People v. Garrison, 189 Cal.App.2d 549, 557 [11 Cal.Rptr. 398], “The question of reasonable and probable cause must be measured by the facts presented to the officer at the time he is required to act.” In determining such question, an officer is justified in taking into account the past conduct, character and reputation of the person sus-
Under the circumstances of this case, as related above, we are of the opinion that Officer De Brunn had reasonable and probable cause to bеlieve that appellant had the intent to use the tools in his possession for the commission of a burglary.
We are further of the opinion that the prosecution need not establish that such intent was directed to a specific building or motor vehicle. (See out-of-state cases interpreting similar statutes, cited in footnote 80 of 12 C.J.S., Burglary, § 69, and 1966 Cumulative Annual Pocket Part.) There are no California cases which discuss this point.
Having determined that the arrest was lawful, we hold that the seizure of the tools being carried by appellant was reasonably incident to such arrest.
Legality of Search of Hotel Room
On May 27, 1965, appellant had rented a room in a hotel for one week. On June 4, the day following the expiration of appellant‘s tenancy, the police еntered this room after first obtaining the hotel manager‘s consent to do so. No search warrant had been obtained. Certain articles, including a briefcase and a 2-foot pry bar found in a suitcase belonging to appellant were seized and later admitted in evidence at the trial.
The specific purpose of the police in searching the room was to look for the other half of a broken hacksaw blade found at the scene of the Hall of Justice burglary.
The prosecution concedes that a landlord or hotel manager cannot give consent to a search of rooms during the tenancy of the occupant. (Stoner v. California, 376 U.S. 483 [11 L.Ed.2d 856, 84 S.Ct. 889]; People v. Cruz, 61 Cal.2d 861 [40 Cal.Rptr. 841, 395 P.2d 889].) However, it relies upon the fact that appellant‘s right to occupy the room had expired. In other words, it was no longer “appellant‘s room.”
In People v. Van Eyk, 56 Cal.2d 471, 478 [15 Cal.Rptr. 150, 364 P.2d 326], the court stated: “The record is sufficient to show that the hotel room in which the narcotics were found on September 15 was no longer defendant‘s room. He rented it on September 13, paying for one day only . . . Defendant‘s tenancy could be found to have expired before the search was made, and the manager of the hotel was entitled to permit the police to enter and search the room.”
We hold that, in the instant case, the hotel manager had the
Consolidation of Actions for Trial
Action 65627 was tried alone and ended on August 19, 1965 in a jury disagreement. On August 25, 1965, the prosecution moved to consоlidate this action with action 65648 for trial. In response to the court‘s inquiry, appellant‘s counsel stated that he had “no argument to present on the matter.” The court thereupon ordered the consolidation under the power given to it under
Such failure by appellant to object or demand separate trials waives any right to now raise the point on appeal. (People v. Chessman, 38 Cal.2d 166, 175 [238 P.2d 1001]; People v. Bennett, 119 Cal.App.2d 224, 226 [259 P.2d 476]; People v. Van De Wouwer, 91 Cal.App.2d 633, 640 [205 P.2d 693].)
Moreover, the two offenses charged are of the same class, burglary; appellant is the only defendant named in each charge; both offenses were committed in the same city approximately one day apart.
Appellant argues that the consolidation was sought by the prosecution in order to strengthen its case in the first action, the outcome of the prior trial having demonstrated the weakness of that action. Even though this speculation were to be accepted, it does not follow that the consolidation of a weak case with a strong case warrants the conclusion that the trial court abused its discretion in ordering such consolidation. (People v. Gryszkiewicz, 88 Cal.App.2d 230, 234 [198 P.2d 585].)
We find no error or abuse of discretion in the consolidation of the two actions in a single trial.
Trial Judge‘s Comment on the Evidence
Appellant complains of the following comment made by the trial judge to the jury: “By the Constitution of this State a
The foregoing statement does not exceed the bounds of proper comment. As stated in People v. Friend (1958) 50 Cal.2d 570, 578 [327 P.2d 97]: “The extent to which a judge is free to comment on the evidence is shown by the fact that it has frequently been recognized that a judge may express his opinion as to the guilt or innocence of the defendant, so long as the province of the jury as defined by the constitutional section is not invaded. (People v. Rupp, 41 Cal.2d 371, 383 [260 P.2d 1]; People v. Daugherty, 40 Cal.2d 876, 893 [256 P.2d 911]; People v. Dail, 22 Cal.2d 642, 658-659 [140 P.2d 828]; People v. Warren, 16 Cal.2d 103, 114 [104 P.2d 1024]; People v. Eudy, 12 Cal.2d 41, 47 [82 P.2d 359]; People v. Ottey, 5 Cal.2d 714, 729 [56 P.2d 193]; People v. Yokum, 145 Cal.App.2d 245, 258 [302 P.2d 406]; People v. Huff, 134 Cal.App.2d 182, 187 [285 P.2d 17]; Pomerantz v. Bryan Motors, Inc., 92 Cal.App.2d 114, 119 [206 P.2d 440]; People v. Busby, 40 Cal.App.2d 193, 202 [104 P.2d 531].)”
To the foregoing citations may be added the recent case of People v. Williams (1965) 235 Cal.App.2d 389, 402 [45 Cal.Rptr. 427].
Sufficiency of Evidence in Action 65627
At some time between Sunday noon, May 30, 1965, and 8 a.m. on the following day, the lock on the door entering into the property clerk‘s office at the Hall of Justice was jimmied and the bolt attached thereto was sawed. The sufficiency of the
Expert testimony established that the pry bar used to jimmy the lock was the same as that found in appellant‘s hotel room on June 4, 1965.
Numerous finger and palm prints of appellant were found on said door on Monday morning, May 31, 1965. This door had been washed with an “all-purpose cleanser” on the preceding Wednesday or Thursday. The testimony is that such a washing would have completely obliterated any prints then on the door.
Appellant had an explanation for his prints being on the door. He testified that he had been incarcerated in the county jail at San Bruno and had gotten out on Wednesday, May 26, 1965; that he went to the property clerk‘s office about 11:30 a.m. of that day to get some keys that belonged to him; that he was told there to go to the burglary detail in the same building; that in entering the property clerk‘s office he pressed both of his hands upon the door in order to open it.
The jury did not have to believe this testimony of appellant. Inspector Siegfried of the San Francisco Police Department testified that on the day of his arrest, June 2, 1965, appellant stated to him that “he hadn‘t been anywhere near the Hall of Justice” since April 27, 1965, the day when he was sentenced to thirty days in the county jail.
Inspector Kramer of the San Francisco Police Department testified as to the location on the door of appellant‘s palm prints and fingerprints.
Thereafter appellant took the stand and gave the following answer to the following question: “Q. Uh-huh. Can you tell me, Mr. Brock, how your fingerprints and palm prints got on all the different areas of the door that was described by Inspector Kramer? A. Well, now, I cannot explain how my prints could get all spread around that far. I merely used one portion of the door to enter. Now, I‘m not saying maybe someone that‘s—I think they are getting—they‘re kind of getting things a bit saying my prints could be in that many places. I don‘t see how it could possibly be that many places because, like I said, I used one section of the door to enter, and I had to use both hands to shove or push the door.”
Appellant cites People v. Hall, 62 Cal.2d 104 [41 Cal.Rptr. 284, 396 P.2d 700]. There a second degree murder conviction was reversed on the ground of the insufficiency of the evidence. One of the items of evidence was discussed as follows:
We fail to see the connection between thе shoe-prints in the Hall case and the finger and palm prints in the instant case. Nor do we accept appellant‘s contention that his “fingerprints are inconclusive since they have been explained away . . . .”
Appellant makes the further statement that “All other evidence [i.e., other than the prints] was purely speculative.” We do not think that the expert testimony positively identifying the pry bar found in appellant‘s room as the same tool which had left marks on the door in question was in any sense “speculative.”
There is no doubt in our mind that the evidence is sufficient to support the conviction in action 65627.
Variance Between Pleading and Proof in Action 65648
The information alleged that the automobile burglarized was that of Stanley Karatz. The proof showed that it belonged to Bеrnard Krause.
Krause had driven Karatz to the Merchandise Mart on Market Street. Karatz left his briefcase in the car and Krause locked the doors. When they returned, the car had been broken into and the briefcase had been taken. This was the briefcase which the police found in appellant‘s room.
The foregoing allegation with respect to the owner of the property burglarized was not a material error. (
Respondent‘s petition for a rehearing was denied May 31, 1967.