People v. Neber

BRITT, C. Defendant was convicted in this action of the crime of burglary in the second degree, perpetrated by entering a certain building with intent to commit larceny therein. Hie charge of the judge to the jury at the trial included the following matter: “The mere fact that a person is found in the possession of property recently stolen, if such be the fact, and established by the evidence beyond a reasonable doubt, is not in and of itself sufficient to warrant a conviction of the party either of larceny or burglary. There must be evidence outside of, or beyond or independent of, the fact of the possession of the property recently stolen in order to warrant a jury in convicting a party. But where the evidence establishes the fact beyond a reasonable doubt that the person who had the recent possession of stolen property gives false, contradictory, or inconsistent accounts of how he came by that possession, that is a circumstance that the jury should consider in arriving at a verdict, and they can and should consider the fact that the party has the possession of property recently stolen in connection with all the other circumstances in the case in arriving at their verdict.” On appeal, defendant does not deny that there was evidence before the jury tending to show that certain personal property was stolen from the building aforesaid at or about the [562]time of the burglary alleged against him, and was found soon afterward in his possession; but he contends that the effect of said instruction was to say that those things were established as true, and so the court charged the jury as to matter of fact.

At the outset of the instruction complained of the judge stated the condition upon which his remarks were founded to be hypothetical only—“if such be the fact, and established beyond a reasonable doubt.” It is incredible that the jury, as men of ordinary intelligence, did not understand that the same qualification accompanied the immediately succeeding references to the same circumstance, although the condition was not repeated. Each sentence of the charge is not required to contain “all the conditions and limitations which are to be gathered from the entire text.” (People v Doyell, 48 Cal. 85; People v. Flynn, 73 Cal. 511; People v. Worden, 113 Cal. 569.) If a suspicion remain that the jury might have misunderstood the language of the court, it is removed by the part of the charge subsequently occurring, as follows: “Do not understand me as intimating any opinion on any fact in this case. Whether the defendant is guilty or innocent of this offense is for you to determine from the evidence. You must distinctly understand that the court in no manner or form is expressing or intends to express or intimate any opinion upon the weight of the evidence, .... or that anjr fact in the case is or is not proven.”