115 Cal. App. 2d 606 | Cal. Ct. App. | 1953
Defendants Ralph R. Northum and Lawrence Coburn have appealed from a judgment rendered upon conviction of two counts of burglary, first degree, and from an order denying their motion for a new trial.
Questions: Did the trial court commit prejudicial error in failing, even though not requested, to give instructions (1) that the evidence of the extrajudicial oral admissions of a party ought to be viewed with caution, and (2) that the extrajudicial oral admissions of Coburn outside the presence of Northum could not be considered as evidence against Northum?
Two homes in the vicinity of San Jose, California, were broken into during the absence of the occupants: that of John Gasner between 6 p. m. on December 31, 1951, and 9 a. m. of the next day; that of Ugo Orsi between 2 p. m. of December 31st, and 11:45 p. m. the next day. Various articles were taken from each home.
The defendants were apprehended in Los Angeles, January 2, 1952, as Northum was entering a pawnshop carrying a fur coat.
That coat, also papers, a safe deposit key, a watch, bankbooks, clothing, jewelry and a jewelry box, Mrs. Orsi identified as items taken from her home. Defendants also had in their possession a pistol, shells, and two watches which Mr. Gasner identified as taken from his home.
Both defendants testified that they purchased all of this property in Oakland on New Year’s morning, from a stranger, for $25, and that they drove to Los Angeles on the inland route via Tracy, Manteca and Bakersfield, and were not in the vicinity of San Jose between the hours of 2 p. m. of December 31st and 11:30 p. m. of January 1st. •
The only evidence, other than their possession of the stolen property, which tended to connect the defendants with the commission of either crime consisted of extrajudicial oral statements made by them to the police.
On and after January 9th when questioned separately or together, defendants stated they purchased all the property in Oakland for a total of $25 from a man they did not know, one defendant paying $15 and the other $10. Upon the stand Northum admitted that when first stopped by the officer in Los Angeles he said the fur coat belonged to his wife; that he had had a few drinks and made that reply on the spur of the moment. Coburn denied having said they bought the gun on December 14th, denied having told the officer that the gun belonged to Northum, asserted that he told the officer the gun was in with the other articles. He denied having told the officer that they had broken into a house in a secluded residential district.
The trial judge instructed the jury that mere possession of stolen property is not sufficient to justify conviction; that in addition to proof of possession of such property, there must be proof of corroborating circumstances tending of themselves to establish guilt; and that such corroborating circum
Other than their possession of the stolen property and Northum’s admittedly false statement that the fur coat belonged to his wife, the defendants’ out of court oral statements furnished the only evidence which connected them with the commission of the crime and placed them near the scene of the crime. It was the only evidence of first degree burglary at the Orsi home,—commission in the nighttime. There was no evidence that they had a deadly weapon other than the revolver taken from the Gasner home and no evidence that the Gasner home was entered prior to the Orsi home. The state refers to certain testimony of Northum and incorrectly claims he testified to having been in San Jose before going to Los Angeles. He was asked about the gun that was in the defendants’ car. He said the first time he saw it was in the city hall in Los Angeles; that Coburn said he put it in the car, that it was among the “stuff” they bought; Coburn told him that after they were in San Jose; Coburn did not tell him that until after they got to San Jose; Northum asked him after they “came up here.” Obviously, Northum had reference to coming to San Jose after the apprehension of the defendants at Los Angeles, not prior to their going to Los Angeles. The state also claims that the defendants’ account, given upon the witness stand, of how they acquired the stolen property, was inherently improbable and as such was evidence of defendants’ guilt. Nevertheless, it was for the jury to determine the credibility of that story. They might have believed it. We cannot say they would not have believed it. Considering the entire record, we cannot say that a different verdict would have been improbable had the cautionary instruction been given. (People v. Bemis, 33 Cal.2d 395, 398-401 [202 P.2d 82]; People v. Cornett, 33 Cal.2d 33, 39-40 [198 P.2d 877].)
The state’s reliance, in large part, upon cases which antedate the Bemis and the Cornett cases is not convincing. Nor are we persuaded, as the state claims, that the ruling in the
Defendants’ other point, relating to the evidentiary effect of oral admissions made by Coburn outside the presence cf Northum, is not well taken. It was not error to admit proof of those admissions without limiting them to Coburn and without later instructing the jury not to consider them as evidence against Northum. Evidence of the making of those admissions by Coburn was given without the interposition by Northum of any objection of any kind. His request for a limitation of the scope of Cobum’s admissions should have been addressed to the trial court, at the proper time.
The judgment and the order appealed from are reversed.
Peters, P. J., and Bray, J., concurred.
A petition for a rehearing was denied February 13, 1953, and respondent’s petition for a hearing by the Supreme Court was denied February 26, 1953. Shenk, J., and Spence, J., were of the opinion that the petition should he granted.