People v. Keko

CONREY, P. J.

The defendants have been convicted of the crime of burglary in the first degree pursuant to an information charging them with that crime in having entered a certain room with intent to commit larceny. They appeal

[352]

from the judgment and from an order denying their motion for a new trial.

It is contended on behalf of the appellants that there is no evidence which tended to connect them with the commission of the offense charged, except the mere fact that each of them was found in possession of a part of the articles which, according to the testimony, had been stolen from the room occupied by one R. P. Holmes, owner of the stolen property. While the mere possession of stolen property unexplained by the defendant is not of itself and standing alone sufficient to justify a conviction of burglary, even if it be shown to a moral certainty and beyond a reasonable doubt that by some one the alleged burglary was committed; yet such possession of stolen property is a circumstance which, taken in connection with other incriminating evidence in the case, may be considered by the jury in determining the question of the guilt or innocence of a defendant so charged.

(People

v.

King,

8 Cal. App. 329, [96 Pac. 916].) Without further reviewing the facts, it is sufficient to say that each of these defendants was found in possession of part of the stolen property under circumstances which might have justified the jury in concluding that they were the guilty parties.

The court instructed the jury that, “The question of intent is not involved in this case, for the reason that if there is any evidence against these defendants sufficient to convict at all, it establishes the fact of a larceny having been committed in connection with the burglary. The evidence if it discloses anything, discloses that larceny was committed by whoever entered the room of this complaining witness, so that no question of intent to commit larceny is involved in this case, or at least the intent is not necessary to be shown other than by the evidence that the larceny was in fact committed, so that the question for you to determine after determining by the evidence whether or not the room of this complaining witness was entered and his goods stolen therefrom, is to determine whether or not these defendants or either of them committed the larceny and burglary.” The foregoing instruction is erroneous in its declaration that the question of intent is not involved in the case. It was one of the most primary and essential elements in the charge against the defendants.