People v. Sweetman

SHAW, J.

The defendant having been convicted of the crime of burglary, appeals from the judgment and an order of court denying his motion for a new trial.

The subject of the larceny was certain plumbing fixtures, consisting of two laundry tubs and a kitchen sink, which had

[646]

been installed in a house at No. 1211 North Mariposa Street, in the city of Los Angeles, which was owned by the prosecuting witness. The evidence, exclusive of a confession made by defendant, without contradiction, shows that the tubs, which were installed upon an uninclosed porch of the house, and the sink installed in the kitchen, the door of which was locked, were, without the owner’s knowledge or consent, by some person unknown to him, taken and removed therefrom between 4:30 o’clock P. M., on June 21st, and 8 o’clock A. M., the next day. The tubs were found installed in a house located at No. 803 North Wilcox Avenue, in the city, the contract for the installation of plumbing fixtures in which had been let to defendant. This evidence was amply sufficient to show the commission of the crime

(People

v.

Wagner,

29 Cal. App. 363, [155 Pac. 649]); hence there is no ground for appellant’s contention that the court erred in admitting evidence of his confession, for the reason that the

corpus delicti

was not established.

Neither does any ground exist for the suggestion that the confession of defendant was procured by promise of reward or immunity. On the contrary, the evidence conclusively shows that defendant freely and voluntarily, and without menace, duress, or promise of any kind, made and subscribed a written confession wherein he stated that he entered the house at about 8 o'clock P. M. and took therefrom the tubs and sink, which he installed in the other house.

The court instructed the jury: “That before an admission or confession of a defendant can be used against him as evidence, it must appear that the statement was made voluntarily, and not under duress, menace, the hope of reward or the fear of punishment. If you find from the evidence that the confession admitted in evidence was made under the promise of reward, or menace, duress, or the fear of punishment, then you must disregard the confession entirely, and unless you find from the evidence, after disregarding the confession, that the defendant committed the offense charged against him, it will be your duty to acquit.” As an abstract proposition of law, the first sentence of the instruction is correct, but it is the province of the court, not the jury, to determine whether or not a confession offered in evidence should be received or rejected.