Defendant appeals from a judgment of conviction upon two counts of burglary and eight counts of petty theft after prior convictions (secs. 666, 667, Pen. Code) and from an order denying his motion for a new trial.
He bases his appeal upon the following grounds, namely: (I) that the evidence is insufficient to establish any crime by defendant; (II) that the statutory instruction on flight was improper; (III) that said statute is unconstitutional; and (IV) that failure to prove the exaсt times of the crimes deprived him of his alibi.
The apartments burglarized were those of the McDuffie family and the apartment occupied by Misses Schmidt, Redford and Johnston; while the acts of petty theft without entry were the taking of certain articles from the premises of one Mrs. Kohrs. All of the victims resided in the city of Santa Barbara.
I. The evidence proves both burglaries and thefts as well as the identity of the defendant as the transgressor. On the 24th of Decеmber, 1938, at noon, the McDuffies left their home and returned at 9 P. M. on the night of the 26th. At the time of leaving, Mrs. McDuffie left in her bedroom chest a nightgown and a girdle. She locked her doors securely, drew down the shades, left a bathroom window open with threads stretched across the aperture. No permission was given to enter their home or to take any of their belongings. On their return, they found the blinds were up, said threads broken, the chest of drawers open, and her said apparel gone.
During the absence of the McDuffies, Mr. and Mrs. Groom and Mrs. Sherrill, residents of the same court, on observing *234 the back door ajar, entered the McDuffie apartment on December 25th at 11 A. M., found the cоnditions above described, windows and screens partly open and the bathroom window up. These facts timed the burglarious entry between noon of December 24, 1938, and 11 A. M. on December 25th.
With reference to the Schmidt burglary, the thrеe ladies occupied the apartment; no one had keys but themselves. Miss Schmidt owned a brassiere-panties set which she left under the Christmas tree Monday, December 26th, at 3:45 P. M., to absent herself until 11 P. M. No one was given authority tо enter the apartment or to take the movables of any one of them. Upon her return, she found her co-occupants and four friends present. No one of these had taken anything. But Miss Schmidt discovered her brassierе and panties missing and Miss'Bedford’s stockings gone.
As to the Kohrs’ theft, on November 27, 1939, she had laundered her miscellaneous underwear and lingerie and hung it outside on the clothes line. No one had permission to remove the articlеs but, on the following morning, her brassiere-panties combination and hose had been taken. No wind had blown with sufficient force to remove them during the intervening night.
On December 31, 1938, as defendant emerged from his apartment with two bundles under his arm and a black bag in his hand, he observed Police Officer Biggs approaching him. He immediately dropped his burden, ran, with the officer in pursuit, and disappeared. Later apprehended, he was by the officers confrоnted with said stolen articles just removed from said abandoned packages- and bag. No protest was uttered or remonstrance made by him; he had fled at the approach of the officer; he was now silent in the face of accusation. He had suffered former convictions for burglary and for the stealing of similar articles of ladies’ apparel. Said two burglaries had occurred within a week prior to his arrest and the petty thеfts all occurred within less than one month. At the Mc-Duffie and Schmidt premises, he left articles of value untouched, taking only the under-garments of women.
(D The evidence is ample to prove the crime. It is not necessary that eye witnesses to a burglary testify in order to warrant a conviction. Burglary is practically always committed in the absence of the occupants or while they sleep. It must, in such cases, be proved by circumstances. After
*235
proof of entry, the sufficiency of the incriminating circumstances is a question which belongs exclusively to the jury.
(People
v.
Willison,
(2) The evidence amply proves the prisoner was the thief. An accusation of crime calls for a reply even from a person in the custody of an officer. (8 Cal. Jur. 103.) The weight of such statements or of silence is a matter for the jury.
(Ibid.)
Such behavior has many times beеn accepted as tending to prove the guilt of the party.
(People
v.
McCoy,
(3) Also, the finding of burglarious intent as well as of defendant’s identity as the burglar are fully justified. The robberies of both apartments and the capture of defendant with the stolen goods within a week, with no explanation “uрon a theory inconsistent with his guilt” are facts which, when believed, warrant the conviction of burglary.
(People
v.
Morris, supra; People
v.
Golembiewshi, supra.)
His selections of the undergarments of women from three separate localities and leaving in the burglarized home things of valuе, taken with his prior convictions of stealing similar articles, indicate a sexually perverted nature and marked him definitely to the jury as the offender.
(People
v.
Randolph,
It is true that possession of stolen goods might be reconciled with innocence of a burglarious entry, but in view of his three thefts in thirty days, his possession, his flight, his silence after apprehension, and of the nature of the articles, no doubt remains of defendant’s guilt. At least it was a logical dеduction for the jury from the facts proved.
(People
v.
Willison, supra, People
v.
Brandon,
The cited case of
People
v.
Barry,
(4) Defendant's contention that the stolen articles were not specifically identified vanishes in the presence of proof. The witnesses, in their turn, identified them by the color of the material, by torn and mended places, by matching them with other articles at home, by the quality of the lace, the sizе of the article, the combination of brassiere and panties, and worn elastic. The positive recognition by the victims of the stolen property was sufficient.
(People
v.
Frahm,
(5) Surely the contention that petty theft is not shown needs only thе suggestion that the total value of all articles stolen from the three places taken together had a value of less than twenty dollars.
II. The court read to the jury the instruction in section 1127c, Penal Code, as follows: “In аny criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct *237 the jury substantially as follows: The flight of a person immediately after the commission of a crime, оr after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstances is entitled is a matter for the jury to determine.”
The argument is made that this instruction was error on the ground that it does not take into consideration other circumstances in connection with the alleged crime or the question as to whether or nоt his flight was explained, and invades the province of the jury.
Since there was ample evidence to warrant a flight instruction, the court was required to give it. Moreover, the fact that his flight was from the presence of the thrеatening police and not from the looted premises does not diminish its efficacy as evidence or reduce its weight as proof. The world was unconscious of his presence as he executed his crime. He hаd no fears of detection then. Refuge was his need only when his safety was threatened. Knowing a crime had been committed, “no other inference can be reasonably drawn from the evidence but that he knew he would bе charged”.
(People
v.
Erno,
III. The contention that said section is invalid is
not
upheld. In the absence of constitutional restraints, the legislature speaks with the voice of sovereignty. No language of the fundamental law is cited and none is known to inhibit a statute reasonably presсribing language for an instruction. The guarantees of the right of trial by jury were never construed to mean that the courts are not to govern the conduct of trials or that the legislature is not allowed to enact substantive law or that it cannot frame the language with which to clothe the law for its presentation to a jury. The challenged instruction “states the law”, (Canst, art. VI, see. 19) forbids the jury to convict upon flight alone, and allows flight to be considerеd; but requires it to be proved and leaves its weight to the determination of the jury. As an instruction, it has been many times approved.
(People
v.
Campos, supra; People
v.
Hansen, supra; People
v.
Ross,
IV. Finally, the evidence clearly fixed the time of the burglaries within such narrow compass that an alibi could have been readily established if one had been available. It is not necessary “to allege or prove the exact date” upon which an offense was committed except in cases where the dаte is material.
(People
v.
Jones,
The judgment and order are affirmed.
Wood, J., and McComb, J., concurred.