257 P. 555 | Cal. Ct. App. | 1927
The defendant was convicted of the crime of petit larceny, after having suffered two prior convictions for grand larceny. The information, among other things, alleges that on or about the twenty-second day of November, 1926, in the county of San Joaquin, the defendant did "wilfully *12 and unlawfully steal, take and carry away a quantity of copper wire of the value of $195.00 in gold coin of the Government of the United States and the said property was then and there the personal property of William H. Ford, doing business under the firm name and style of River Rock and Gravel Company."
Upon this appeal, it is urged that the conviction of the defendant was had upon the testimony of an accomplice insufficiently corroborated; that there was no sufficient proof of ownership of the property alleged to have been stolen; that the court erred in its instructions to the jury, and that the district attorney was guilty of prejudicial misconduct in his argument to the jury.
The record shows that some time previous to the commission of the alleged offense the defendant was living with his wife in a house situated on a small tract of land a short distance from the town of Tracy, in the county of San Joaquin, and that for a short period of time preceding the alleged offense one Glenn Duvalle, a boy of about the age of nineteen years and a brother of the defendant's wife, had been stopping at the defendant's home; that on the twenty-second day of November, 1926, the defendant, accompanied by the said Glenn Duvalle, drove a Ford automobile from his place of residence to the premises used and occupied by the River Rock and Gravel Company, which premises were situate about seven miles southwest of Tracy, and likewise in said county of San Joaquin, and took from the said premises about 60 feet of copper wire belonging to said company, described as 3 conductor electric cable. This cable was protected by what is called a steel armor. The cable and the armor were brought to the place of defendant's resident the same night; the next morning the steel armor was removed from the electric cable and thrown over and found in an adjoining field near where the defendant resided. The insulation was then burned from the cable wire. After the insulation was burned off the defendant, accompanied by Duvalle, brought the cable wire in a sack to a junk dealer in Stockton, and there sold the same, together with sundry other articles of junk. The witness Duvalle testified that the sack contained the same wire that had been stolen the previous evening, the change being in taking off the armor and burning the insulation. *13
Upon the trial of the case a witness, E.E. Williams, who testified that he was the superintendent of the River Rock and Gravel Company, described the wire in question and produced in court a short piece of wire from which the 60 feet of cable had been taken. In describing the wire, this witness spoke of it as 7 strand of 19 wires each. The witness Horowitz, connected with the junk company to which the copper wire was sold, described the wire as 3 strand wire. Upon this difference in the description of the wire it is strongly urged that the testimony does not show the sale and purchase of the stolen cable. The testimony, however, goes further than this. Shortly after missing the cable herein referred to, a piece of wire taken from the same strand and the one which was exhibited in court was taken by an officer to the junk dealer and there compared with the stolen cable, and the witness, Horowitz, above referred to, testified that the wire purchased from him was the same kind of cable exhibited to him as a part of the cable from which the 60 feet of wire were alleged to have been stolen. The stolen wire was not exhibited in court, having been disposed of by the junk dealer prior to the trial. The testimony shows that the junk dealer paid the defendant the sum of $9.70, no part of which was received by the witness Duvalle. There is also testimony in the record of an examination of the footprints where the Ford car was stopped by the defendant near the premises of the River Rock and Gravel Company, from which the copper wire was taken; that these footprints were made by shoes similar to shoes seen upon the defendant's feet shortly after the said twenty-second day of November, 1926. An examination was also made of the tracks of the automobile. It appears that the tracks where the automobile turned showed that the front tires were considerably worn. An examination of the Ford automobile owned by the defendant exhibited such a condition of the front tires thereon.
The testimony also shows that the armor herein referred to, used to protect the cable, was found in an adjoining field near the premises occupied by the defendant. The testimony of the defendant is to the effect that the armor was seen by him lying in the field referred to as early as August in 1926, and that he also saw wire lying in the field near the same place in August; that he took wire to *14 Davidson's junk shop and sold it; that he obtained possession of the wire sold to Davidson in the following manner:
"Q. This wire you sold to Davidson's junkshop, where did you get it? A. I got some of it over at the city dump, and there was Ed. Vergin and a fellow called John had the name of — well, I can't remember the name, but anyhow they were junking together, and they had some kind of a split-up, and when John went to take a load of junk he had down to Stockton here to somebody, I don't know where he sold it, there was a sack in this car that belonged to them, and this John said he was going to throw that stuff out of the car belonging to Ed. Vergin, so he threw it by the side of the fence, and it lay there for quite a while. . . .
"Q. And the other wire, where did it come from? A. The other wire was wire John threw out of his car, said it belonged to Ed. Vergin. Afterwards, I heard this other fellow wouldn't come back any more. I says I think I will sell that stuff he throwed out there, take all this I could take to this junk company in Stockton; my wife went out there and helped me put it in the car; she was there when I put it in the car; also Glenn Duvalle, then we came to Stockton."
The defendant also testified that on the evening of the twenty-second of November he loaned his Ford automobile to the witness Duvalle; that the witness Duvalle left his house saying that he was going to town; that he came home about half-past 10 that same evening; that the next morning the witness Duvalle told the defendant he had got some copper wire, whereupon the defendant told the witness to get it away from there.
[1] Relying upon section
[5] To sustain his contention that the court erred in refusing to instruct the jury, as requested by the defendant, our attention is called to the following instruction asked for by the defendant and refused by the court: "The legal presumption of innocence is a matter of evidence in his favor to the benefit of which a defendant in a criminal case is always entitled, and unless the jury are entirely satisfied that the defendant's guilt has been proved beyond all reasonable doubt and to a moral certainty, they must find a verdict of not guilty."
Without questioning the correctness of this proposed instruction, an examination of the record discloses that the real meat of the refused instruction is involved in the charge given to the jury by the court. The court, in its charge, instructed the jury: "The defendant in a criminal case is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal."
And, also, the court instructed the jury as follows: "The court instructs the jury that no presumption of the defendant's guilt should be indulged in by the jury from the fact that an information has been returned against him, or from the fact of his arrest, or that he is placed on his trial; on the contrary, every presumption except such as may arise from the evidence in the case, is in favor of the innocence of the defendant and the jury should be governed by that presumption of innocence during their entire deliberations, unless it be overcome by evidence that will fully *17 satisfy the jury of the defendant's guilt, and if the jury are not entirely satisfied from the evidence of the defendant's guilt beyond a reasonable doubt and to a moral certainty, the jury should acquit the defendant."
From these instructions it appears that the defendant has suffered no prejudice by reason of the court refusing to reiterate in a different form the substance of instructions already given.
The objection that the prosecuting attorney, in his argument to the jury, was guilty of prejudicial misconduct has been examined and is so completely without merit as to require no further mention in this opinion.
The final objection to be considered is that there was no sufficient ownership proven of the property alleged to have been stolen to support the verdict in this case. The information, as we have said, charged the stealing of certain copper wire, the personal property of William H. Ford, doing business under the firm name and style of River Rock and Gravel Company.
The record shows that E.E. Williams testified that he was the superintendent of the River Rock and Gravel Company, that on the twenty-second day of November, 1926, the company missed some of its property, which consisted of an electric cable about 60 feet long. The effect of this is to show that the company owned the property or that it belonged to the company.
The authorities are uniform that under the common law this failure in the proof as to the ownership of William H. Ford would be fatal. To cover such technical defects in the testimony as to ownership of stolen property, the variance in the testimony from the allegation as to ownership of stolen property, the legislature of this state adopted section
Following this section and the interpretation placed thereon, we find in 14 Cal. Jur. 101, the text-writer summarizing the law as follows: *18
"Ownership may or may not be an essential matter of description according to the offense charged and the circumstances of its commission. The general rule is that ownership must be proved as alleged because it identifies the offense. This is the rule at common law. But under section
In support of his contention that the ownership in this case, as alleged, is an essential element to be proven, the appellant calls our attention to the case of People v. Webber,
In the case of People v. Hughes,
The case of People v. Wallace,
In the case of People v. Reed,
In the case of People v. Davis,
In the case of People v. Oldham,
In that case, the judgment was reversed upon other grounds, but the comments of the court here quoted seem to us quite applicable.
In the case of People v. Nunley,
In the case of People v. Sing,
The court, in considering the question of variance, stated: "Moreover, the variance . . ., was not fatal. It would have been fatal at common law; but in this state it is provided by statute — section
[6] In the case at bar there is no question but that both the allegations and the proof show conclusively that the property did not belong to the defendant; that certain property was stolen; that it was taken from the possession of a certain concern alleged to be owned by one William H. Ford. *22
The testimony shows that it was taken from the possession of the concern doing business under the name of River Rock and Gravel Company, the name under which it is alleged William H. Ford was doing business. There appears to be no question as to the identity of the place from which the property was stolen, the place where the River Rock and Gravel Company was doing business. The testimony of the witness Williams is to the effect that at the time of the larceny he was the superintendent of the company, that as such superintendent he missed cable wire alleged to have been stolen by the defendant, taken from the premises of the River Rock and Gravel Company, the location of the premises being stated in the testimony. The testimony of the witness Duvalle, who accompanied the defendant in the larcenous expedition, definitely locates the place of the theft and the articles taken. The only variance or failure in the testimony is the fact that no witness testified William H. Ford owns the River Rock and Gravel Company and does business in that name. It is evident that this bit of testimony would add nothing to nor take from the defendant's guilt. It is merely descriptive of the ownership of the property and does not affect a single substantial right of the defendant, if there is sufficient in the case to constitute a bar against another prosecution for the same offense. Taking the allegations of the complaint and the testimony of Williams, the superintendent of the River Rock and Gravel Company, it is evident that the record shows sufficient to enable the defendant to effectively plead this prosecution in bar of any other action seeking his conviction.
Under this state of facts, the language of the supreme court in the case of People v. Nelson,
The testimony in this case shows conclusively that the property in question was stolen from premises operated under the name of River Rock and Gravel Company; the premises operated under said name were also definitely located. There is no pretense in the testimony of there being other than the one place where such operations were being carried on.
In view of these facts and in view of section
The judgment of the trial court is affirmed.
Finch, P.J., and Hart, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on July 15, 1927, and a petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 11, 1927. *24