People v. Lang

The defendant was accused by the information of the crime of burglary, alleged to have been committed on the sixth day of August, 1901, by entering the rooms of one Orr with intent to commit larceny. He was convicted and sentenced to five years in the state prison. This appeal is from the judgment and order denying his motion for a new trial.

1. It is claimed that the evidence wholly fails to establish the fact that any burglary was committed, and that for this reason certain evidence was improperly admitted. The witness Orr testified that on the fifth and sixth days of August, 1901, he occupied rooms 40 and 41 at 501 Geary Street.' That he put his overcoat in the clothes-press on the morning of the 5th of August. That he missed the overcoat from his room on the evening of the 6th, and" that he never gave any one permission to take the overcoat from the rooms. That he afterwards recovered the overcoat from detectives Dinan and Wren.

There is evidence which, if true (and we must presume it to be for the purposes of this case), shows that on the morning of August 6th the defendant took the overcoat to a loan office at 22 Mason Street and pawned it for four dollars; that he signed a fictitious name on the books at the loan office,—to wit, “G. Reed, 1101 Eddy Street”; that the overcoat is the property of Orr; that it was found at the loan office by detectives Dinan and Wren; that the name “G. Reed, 1101 Eddy Street,” written in the books of the loan office, is the handwriting of defendant; and that defendant when arrested denied that he pawned the overcoat.

We think the above facts sufficient to justify the implied finding of the jury that defendant entered the room where the overcoat was, and from which it was taken. Some one took it from the rooms of Orr on or about the time charged. •Defendant on the same day had the coat in his possession. He took it to a loan office. He there signed a fictitious name, and afterwards denied the signature. While possession of the" stolen property is not of itself sufficient evidence of the guilt of the party in whose possession it is found, still the recent possession, unexplained, is a very strong circumstance, when taken in connection with other circumstances that point to guilt. The fictitious name given at the loan office; the pawn

2. It is claimed that the court erred in allowing the witness Kytka to testify to a fact, when his opinion only was competent. The district attorney showed the witness certain handwriting and asked if the same man who wrote 11G. Reed, 1101 Eddy Street,” on people’s exhibit No. 2 wrote certain writing on people’s exhibit No. 3. The objection to the question was, that it was incompetent for the reason that the corpus delicti

3. It is argued that the court erred in orally charging the jury and in refusing several instructions offered by the defendant. As to the oral charge, the bill of exceptions shows that it was taken down by the phonographic reporter, and that “after argument had been made by counsel, and an oral charge delivered by the court, which was taken down at the time by the official reporter, a written charge having been waived by counsel on both sides, the jury retired in charge of a sworn officer to deliberate upon their verdict.” The above shows a consent that the jury be charged orally. As to the refusal to give defendant's requested instructions, the record shows that they were not presented to the court until the district attorney was concluding his argument, and that the rule of the court required that they should have been presented before the commencement of the arguments of counsel. Such rule of court is regarded as proper, and should generally be followed by counsel, but the rule will not justify the court in refusing to give a proper instruction upon a point in the case material to the defendant which has not been given elsewhere. (People v. Silva, 121 Cal. 668 .) In this case our attention has not been called to any instruction offered which in our opinion would justify us in saying that the court should have set aside or disregarded its rule. Again, the record shows that a written charge was waived by counsel after the case was finally argued, and the oral charge given by the court seems to have been full and fair to defendant, covering all the important phases of the case.

4. It is claimed that the court erred in instructing the jury “that the attempt of the accused to prove an alibi does not shift the burden of proof from the prosecution.” The extract quoted and complained of by defendant must be read in connection with the entire instruction in which it occurs,

The court by the use of the word “attempt” did not mean to discredit the evidence of defendant on the question of alibi, and it could not have been so understood by the jury. It is perhaps not the best expression that could have been used, but it evidently meant that the fact that defendant had offered evidence for the purpose of proving an alibi does not shift the burden of proof. It was certainly favorable to defendant. It gave the jury the clear idea that whatever had been done by way of proving an alibi did not make it less imperative for them to bear in mind that the burden was upon the prosecution to prove the presence of defendant beyond a reasonable doubt. (See People v. Glover, 141 Cal. 233 .) The case of People v. Ellenwood, 119 Cal. 170 , cited by defendant, does not support his contention. There it clearly appears that the court discredited a witness. To tell the jury that a party had “brought here a witness who undertakes to tell you” that he has done a certain thing was clearly an intimation discrediting the witness.

5. It is claimed that the court erred in instructing the jury as follows: “And if the defendant has explained satisfactorily how he came into possession of the alleged stolen property, and from such explanation you believe that he did not participate in the burglary, and there is no other evidence con

6. There was no error in denying defendant’s motion for a continuance. The affidavit does not show due or proper diligence. It states that defendant’s attorney searched diligently for the witness for seven days at his former place of residence, 501 Geary Street, in the city and county of San Francisco. Seven days was certainly long enough to search in one place, but no search elsewhere appears to have been made. The affidavit states that the attorney made diligent inquiry at said place, but whether any one heard the inquiry or not, or whether it was made of any person at the place, does not appear. Nor does it appear that defendant could not have proved the facts set forth in the affidavit by some other witness. In fact the testimony of the absent witness given on a former trial as to the matters set forth in the affidavit was read to the jury in this case. We have examined the other assignments of error and discover nothing that would justify a reversal of the case.

We advise that the judgment and order be affirmed.

Chipman, C., and Smith, C., concurred.

McFarland, J., Lorigan, J., Henshaw, J.

Hearing in Bank denied.