20 P.2d 952 | Cal. Ct. App. | 1933
By information the appellant was charged with the crimes of burglary and receiving stolen property, and also with two prior convictions of felonies. Appellant admitted the prior convictions and was found guilty of burglary and not guilty of receiving stolen property.
The errors of which appellant complains are these:
1. Insufficiency of the evidence to justify the verdict for the reason that the corpus delicti was not established.
2. Error committed by the trial court in matters of law in the reception of certain evidence.
3. Error of the trial court in giving certain instructions to the jury, and in refusing to give certain instructions tendered by the defendant and not covered by the instructions given.
4. Misconduct of the deputy district attorney in his argument to the jury. *756 [1] It is shown by the record that on June 19, 1932, William J. Steinmetz was living in room 411 of the Hotel Rose at Long Beach, and that he returned to his room at about 12:30 A.M. of June 20th, retired about forty-five minutes later, having first locked the door of his room. Before retiring he took off his wrist watch and laid it upon a table near the telephone, and hung his trousers on a chair. Upon arising at 9 o'clock the next morning, he found the wrist watch missing and also that the sum of $4.85 had been taken from his trousers pocket. He testified that he did not give anyone permission to enter his room that night, and that the watch which he lost was a 17-jewel Hamilton wrist watch with the date of his birthday engraved on the inside of the case. He also testified that the door of his room was still locked in the morning and that the room had not been disturbed.
A 17-jewel Hamilton wrist watch with the date above noted engraved upon the inside of the case was found in appellant's possession at the time of his arrest on July 7, 1932, and was identified by the witness Steinmetz as the watch he had lost. There was introduced in evidence a sheet from the Hotel Rose register purported to have been signed by "C.D. Nolen" upon the date that the burglary took place. An identification sheet which was prepared immediately after the arrest of appellant, and which the witness Slaight testified he saw appellant sign, was also introduced in evidence. A handwriting expert testified that, in his opinion, both documents were signed by one and the same person.
Appellant made conflicting statements to police officers as to how he came into possession of the watch. At one time he said he had bought the watch and would add nothing more to his statement as to where or when he purchased it; at another time he claimed his wife had given it to him for his birthday. Two witnesses testified in behalf of appellant to the effect that they and appellant were standing in front of a garage engaged in conversation when another man approached them to ask directions and the distance to Santa Barbara, and while they were talking, this fourth man asked if anyone wanted to buy a good watch. After some further conversation, the appellant bought the watch — *757 a 17-jewel Hamilton wrist watch — for $5. While circumstantial, we are of the opinion that the evidence adduced was sufficient to justify the verdict and to establish the corpus delicti. [2] In support of his second specification of error, appellant maintains that the hotel register was inadmissible for the reason that no proper foundation for its reception was made, in that the record does not disclose the date of same. The sheet from the register is before us and shows that one C.D. Nolen registered at the Rose Hotel at 9:15 P.M. of Sunday, June 19, 1932.
[3] The appellant contends that the giving of the instruction of which the closing paragraph reads as follows: "If the jury believe from the evidence, the property mentioned in evidence, was stolen from the premises described in evidence, and was seen in the possession of the defendant shortly after being stolen, the failure of the defendant to account for such possession, or to show that such possession was honestly obtained, is a circumstance tending to show his guilt, and accused is bound to explain the possession in order to remove the effect of the possession as a circumstance to be considered in connection with other suspicious facts, if the evidence disclose any such," constituted prejudicial error. In the case of People v.Boxer,
In People v. Alba,
[5] Appellant also specifies as error the refusal of the court to give an instruction on the law pertaining to alibis. Appellant offered no evidence to prove the defense of an alibi, and therefore it was not error for the court to refuse to give the instruction referred to.
[6] We have checked the record and are unable to see wherein the remarks of the deputy district attorney constituted prejudicial misconduct.
The judgment is affirmed. The order denying motion for a new trial is affirmed.
Conrey, P.J., and Houser, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on April 17, 1933, and an application 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 May 1, 1933. *760