LAWLOR, J., Dissenting.
I dissent.
It is conceded by the main opinion that the evidence is sufficient to sustain the verdict, but before considering the asserted error in the admission of the evidence touching the watch I shall refer to other phases of the proof in order to show that even if such rulings were erroneous, the admission of'the evidence cannot be held to call for a reversal.
According to the record appellant asked for mail both for “Prank Monroe” and O. Semsley, and on arraignment he gave the name by which he was prosecuted.
“Recent pos
session” of the shirt is established by appellant’s own tes
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timony to the effect that in the first part of September (the burglary was committed on August 24th) it was left where he was'camped near the Santa Clara bridge, between El Rio and Montalvo, by two men, Art Croten and his father, who drove in with a Chevrolet express ear. Art Croten was wearing the shirt at the time. The two men camped with appellant about three days. When departing they left the shirt and some other articles and he “washed up the shirt and have wore it ever since.” Appellant admitted he was living in that camp between the 1st and 10th of September; that he bought the car from the Crotens, paid them $190 in currency, and “they went away with the car and beat me out of the car”; took his roll of blankets with them, and that they were more valuable than the roll they brought to the camp and left there. Jacob Cohn, who kept a grocery-store at El Rio, testified that appellant bought supplies from him several times in the early part of spring and in October and November. In October, accompanied by appellant, he delivered goods to a “hobo camp” in the river bottom about a mile or a mile and a half north of the bridge, on which occasion he saw two or three other men at the camp. John Donlon, Jr., testified that in the month of April he saw appellant at a camp a mile and a half “up the river in the direction of Santa Paula,” above the Montalvo bridge, and that appellant told him he was camped there. This camp was southwest of the Linehan place. He was attracted to the presence of appellant by noise in the brush; that this was the only camp he knew of on the river bottom, and that he had met appellant on a trail in the river-bed prior to the meeting at the camp, and two or three weeks later he met him on the road coming from Oxnard. Henry C. Sullivan, a deputy sheriff, testified that the camp where the things were found was “about a mile north, or a little northeast of the Montalvo River bridge, the east end of the Montalvo River bridge”; that D(talon directed him to the camp and was present at the time the things were found. The testimony of Cohn, Donlon, and Sullivan approximates the distance of the camp from the bridge and agrees in the description and location—referring to the camp where the shoes, watch, and jewelry were found, and neither Cohn nor Sullivan refer to any other camp on the river bottom. Appellant did not testify as to the location of the camp visited
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by the Crotens, but Sullivan quoted him as stating in the district attorney’s office that he lived in the river bottom, west of the bridge. He testified his camp was between El Rio and Montalvo, near the bridge—not giving the distance from the camp to the bridge. The evidence is, then, that Cohn accompanied appellant to the camp; that Donlon saw appellant at the only camp he knew of in the river bottom; that appellant told him he was camped there; that Donlon directed Sullivan to that camp, and that it was at that camp the things were produced in his presence. None of this testimony was contradicted, nor is it denied that the shoes were worn by appellant; that the shoes, the jewelry and watch were located in the camp, nor that he brought them there. Appellant’s counsel argue that if he was connected with the camp the officers would have contrived to find him there. There is no claim by the defense and no one testified that there was a camp on the river bottom other than the one where the missing property was located. There is direct evidence that appellant was seen at the camp before the burglary; that he said he camped there; and the only camp shown to exist was that camp, and it was there the things were found. It can hardly be true, in the light of the record, that the shoes were the only evidence that appellant went to and returned from the Linehan house, for the possession of the stolen property is evidence of burglary, from which the jury could have inferred that appellant went to the house during the brief absence of the occupants.
The adverse verdict disposes of the statement in the majority opinion that upon the presumption of innocence the jury may well have assumed the shoes “were worn by some other member of the group at the camp.” And especially as appellant is the only person the evidence traces to the camp where the shoes were discovered. Moreover, there is no evidence that there was any other occupant of the camp before the burglary.
Appellant’s direct examination was limited to the possession of the shirt. There is no counter-evidence of any kind that he did not commit the burglary. He admitted two previous convictions of felony, but could not recollect the character of one of them. The evidence given by appellant, including the fantastic story of this admitted hobo buying an automobile from his supposed visitors and paying $190
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in currency for it, the ear, like his visitors, vanishing into thin air, would alone destroy the defense. The court instructed the jury as to the limited purpose for which the evidence of previous convictions might he considered and that such evidence would not warrant a verdict of guilty of the crime charged upon any less degree of proof than that required in any other case.
Upon this evidentiary showing there can be no warrant for placing the finding of miscarriage of justice upon the character or quantity of the proof.
The judgment of conviction is to be reversed because the owner of the watch was allowed to testify “this is my watch”; that it had been taken and that her name on the watch had been obliterated and “Semsley” substituted. One tendency of this testimony would be to further identify the timepiece.
If nothing more were shown than that the watch was found in the camp and that it bore a name appellant was known to have used, the jury would probably draw the inference that he was the owner—a false hypothesis which the prosecution should not allow the jury to assume even if it more certainly tended to connect appellant with the camp. It follows that the facts as to the watch should have been proved completely, even if the evidence suggested an unexplained possession in appellant. It was open to the defense to request an instruction limiting the purpose for which the jury might consider the evidence as to the watch, and none was proposed. It is the duty of the prosecution to rebut every presumption which under any theory of the case might favor innocence and to anticipate matters of defense sounding in the case of the prosecution when it is believed the accused is guilty. In view of the evidence and the entire record it should not be held that appellant was prejudiced in his rights by the admission of the evidence in question, even if it be assumed it was not proper to admit it in order to further identify the watch. Under no circumstances can it be said the admission of the evidence worked a miscarriage of justice.
The order denying the motion for a new trial should be affirmed.