People v. Russell

KNIGHT, J.

Appellant was charged with having burglarized the garage of an apartment house in San Jose, and with a prior conviction of burglary. He was tried by a jury and found guilty of second degree burglary, and the charge of prior conviction was found to be true. From the judgment of conviction and the order denying his motion for new trial he has appealed, and as first point for reversal urges that the evidence is insufficient to establish his guilt on the principal charge. After having examined the record, we are convinced that the point is not well taken.

The garage was burglarized some time after 7:30 o ’clock on the night of June 15, 1938, and from one of the automobiles parked therein belonging to F. E. Anderson there was stolen a camera, a robe and a flashlight. The burglary was detected the next morning, and immediately reported to the police. About 10 o’clock that same night, June 16, 1.938, appellant was apprehended three blocks from the apartment house by two police patrol officers while he was seated in a car alongside of a street grader, siphoning gasoline from the grader into the car he was occupying. Upon checking the license number and the registration certificate of the car, the officers discovered that the car had been reported stolen in Riverside earlier that month. Thereupon appellant and the car were driven to the police station, and upon searching the car the police found therein the camera, the robe and the flashlight which had been stolen in the garage burglary. When interrogated concerning the possession and ownership of said articles appellant told several conflicting stories. He first told the officers, according to their testimony, that the articles belonged to him; that he bought them a long time ago, but could not remember where or under what circumstances. He was asked particularly if the camera was his,

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and he replied that it was; but when informed that the number thereof corresponded with the number of the camera stolen from Anderson’s automobile, he admitted having taken the camera, also the flashlight and the robe, from a car parked in a garage “out this way near where you fellows picked me up”. The officers then requested him to sign a confession of guilt, but he replied it was not necessary, that he would plead guilty to petit theft. They informed him, however, that the offense was burglary, and not petit theft, and they read to him the section of the Penal Code defining burglary; whereupon appellant denied having taken the articles, saying they were given to him that afternoon by “some fellow” he did not know—that he had never seen the man before. Some time later, and after he had been told that Anderson had identified the articles as his property, appellant was again asked how he came into possession of them. He replied that he did not know; and thereafter he refused to answer any questions more than to deny any knowledge of how the articles came into his possession. On cross-examination of one of the police officers by counsel for appellant, it' was brought out that appellant made conflicting statements also as to the possession and ownership of the ear he was occupying at the time he was apprehended. In this ' regard the officer testified that when appellant was asked who owned the car, he replied that it belonged to him but was registered in the name of Miss Edith Hansen, his “girl friend,” whereupon he was told that the car had been reported stolen; that appellant then changed his story, saying that “a fellow named Mickey,” whose acquaintance he had made in San Quentin, had turned the car over to him the day before in San Francisco so that he could drive to San Jose and look for work in the fruit. As a witness in his own behalf appellant admitted the prior conviction but denied having committed the burglary. In this connection he testified that on June 15th he was in Salinas looking for work; that he had borrowed the car he was occupying at the time he was apprehended from a friend in San Francisco; that the camera and robe were in the car at the time he borrowed it, but that the flashlight belonged to him. Furthermore, he denied having made most of the statements attributed to him by the police officers, particularly that he had told them he had taken the articles from a car parked in a garage.