People v. Wilson

ADAMS, P. J. The amended information in this ease, in two counts charged defendant with entering Bremer’s Hardware Store in Yuba City on July 21, 1951, and July [94126], 1951, respectively, with intent to commit theft therein. A jury convicted defendant on both counts, and fixed the degree of the crimes as “Burglary in the Second Degree.” A motion for a new trial was denied.

Defendant has appealed from his conviction on both counts, contending that there was reversible error in the giving of one instruction to the jury, in the admission in evidence of two exhibits introduced by the prosecution, and that the evidence produced was insufficient to justify conviction.

Regarding the first of said contentions it is urged that, following the usual instructions that the jury were the sole and exclusive judges of the effect and value of evidence and the credibility of witnesses, that a witness is presumed to speak the truth but that such presumption may be repelled, etc., and that a witness wilfully false in one material part of his testimony is to be distrusted in others, the court added: “Oral statements of a defendant should be viewed with caution.” It is the latter portion of the instruction to which defendant objects, saying that it is not the law. He says that what the court probably meant was that where testimony has been given that a defendant made oral statements or admissions, such testimony should be received with caution; but he urges that the instruction as given robbed the defendant of the presumption of innocence.

The record shows that the jury was fully instructed on the proposition that the defendant was presumed to be innocent until the contrary was proven, and that in case of a reasonable doubt he was entitled to an acquittal.

Defendant did not take the stand in his own behalf nor did he offer any testimony in defense. There were, therefore, no statements of his during the trial which the jury could assume were to be received with caution, and our attention is not directed to any. We fail to see how any prejudice did result or could have resulted from this instructioñ; and if it can be said that the giving of same was superfluous, under the provisions of article VI, section 4%, of the Constitution, the inclusion of same may be disregarded.

Appellant’s second contention is that the trial court erroneously admitted in evidence a metal container and a carton which were not found in defendant’s possession. The record shows that the prosecution produced these empty containers during the examination of a witness who testified as to articles taken from the hardware store during the burglaries, the metal case having contained an electric drill, and