People v. King

KERRIGAN, J.

Appeal from the judgment and order denying defendant’s motion for a new trial.

[330]

Appellant was accused jointly with Thomas Baker and Harry Hamilton of burglary, committed on April 23, 1902, in the city and county of San Francisco. The information also alleged two prior convictions of burglary against both appellant and Hamilton, and one, prior conviction of robbery against Baker. Appellant admitted the prior convictions charged against him, and pleaded not guilty to the main charge. No evidence was offered on the part of appellant, and he was convicted of burglary in the first degree. He was sentenced to imprisonment in the penitentiary for twenty years, the sentence to run concurrently with another of ten years, the judgment imposing which has been affirmed by the district court of appeal of the third appellate district.

{People

v. King, 4 Cal. App. 213, [87 Pac. 400].)

Appellant does not contend that the evidence was insufficient to warrant the verdict of the jury, but he complains of the refusal of the court to give certain instructions. The first of such instructions is that numbered 40, which reads r “If the evidence in this case proves no more than the fact that defendant had possession of the property in evidence, and that he with one Hamilton brought the same to No. 835B Howard street, in this city, then the court instructs you that the defendant cannot be convicted of burglary, and that your verdict must be that he is not guilty.” This instruction was substantially given several times at the request both of the appellant and of the people. Some of the instructions given which we think cover the one refused are the following: Instruction No. 2, which in part reads: “In other words, if the jury believe, to a moral certainty and beyond a reasonable doubt, that a burglary had been committed on the premises in question, as alleged in the information; that certain personal property had been stolen in the commission of such alleged burglary; and that certain of such property was afterward in the possession of the defendant, this possession, of itself and standing alone, is not sufficient to justify his conviction, even if the commission of the burglary be established as aforesaid.” By instruction No. 48 the court told the jury that it could not convict the appellant of burglary upon proof that he had received stolen property, knowing the same to have been stolen. . In instruction No. 61, requested by appellant, the court informed the jury that, unless the evidence satisfied