GRAY, C.
The appellant was charged with burglary in having entered a freight-car of the Southern Pacific Company in San Francisco with intent to commit larceny therein. There was also a charge of a prior conviction of petit larceny against appellant. The prior conviction was confessed, and on a trial the defendant was convicted of burglary in the second degree, and sentenced to five years in the state prison.
1. The first contention for a reversal of the judgment is that there was no evidence against defendant except the finding of some malt stolen from the burglarized car, in his possession soon after it was stolen. The evidence touching the matter is as follows: The defendant is twenty-two years of age, and with three other boys he was found about two blocks from the said car at 8 o’clock in the evening, and less than an hour after the burglary was committed. Each of said boys had on his shoulder a sack of malt that had just *826previously been stolen from said car. On being approached by a police officer, the boys, other than defendant, dropped the sacks of malt and ran away, but the police officer seized the defendant as he was in the act -of dropping the malt from his shoulder. The officer then asked defendant what he was doing with that, and defendant replied that he was no chicken, and was not going to tell. Defendant was then taken into custody. At his preliminary examination the defendant was a witness, and testified, in substance, that he did not remember anything of his arrest, or that he had any conversation with the officer, or that he had any sack in his possession, or that he was in company with anybody at the time of his arrest. In short, his mind seems to have been a blank at the preliminary examination as to all matters connecting him with the sack of malt found in his possession. Upon the trial of his case, however, he testified that on the night of the alleged burglary about 8 o ’clock in the evening, he was coming down Broadway street, and was pretty full; that he met three persons on the corner of Broadway and Front, and they had four sacks of malt with them; that they stopped him, and asked him to give them a hand, and he did so he took one sack, and they told him to “pack it as far as the corner with them.’’ We think the defendant’s conduct at the time of his arrest manifested a guilty conscience ; and his failure of memory at the preliminary examination, followed by his recollection of an important fact in his favor on the trial, argues an attempt at concealment on the former occasion or falsehood on the latter. The defendant’s conduct betrays guilt, and corroborated by the fact of the possession of the stolen property so near to the scene of the crime, and so soon after its commission, is sufficient ty support the verdict of guilty. It cannot be said, in view of this evidence, that the fact of possession stood alone and uncorroborated : See People v. St. Claire, 5 Cal. Unrep. 294" court="Cal." date_filed="1896-03-17" href="https://app.midpage.ai/document/people-v-st-clair-5669240?utm_source=webapp" opinion_id="5669240">5 Cal. Unrep. 294, 44 Pac. 234; People v. Luchetti, 119 Cal. 501, 51 Pac. 707.
2. There was no evidence óf a confession introduced or offered, and hence there could be no necessity for laying a foundation for such evidence by showing that the statements of defendant offered in evidence were made voluntarily. The most that could be said of defendant’s statements given in evidence is that they were mere declarations against interest, and in no sense were they confessions.
*8273. There was no error in reading to the police officer, while a witness at the trial, parts of his testimony given at the preliminary examination for the purpose of refreshing his memory as to the conversation between himself and the defendant. Besides, no proper ground was stated for the objection made by defendant. The objection as stated was: “Now, I will object to any introduction of the testimony of the lower court on the pretense that it is used to refresh the memory of the witness or for any other purpose.” No objection was made that the evidence was incompetent or secondary or hearsay or anything of that kind.
The judgment and order denying a new trial should be affirmed.
We concur: Cooper, C.; Smith, C.
PER CURIAM.
For the reasons given in the foregoing opinion the judgment and order denying a new trial are affirmed.