People v. Williams

Defendant was found guilty by a jury of burglary in the second degree. He appeals from the judg

This appeal follows the second trial of the defendant. The jury disagreed on the first trial. The present record discloses the following matters of evidence: Giacomi Tassi and William Fey, as partners, operated a butcher shop on the corner of Sixteenth and Dolores Streets in San Francisco. Tassi testified that the shop was located at 3297 Sixteenth Street, while Fey placed it at 3299 Sixteenth Street. The latter designation accorded with the information’s recital of address in the charge of burglarious entry.

On the evening of November 23, 1943, just before Thanksgiving, Tassi and Fey closed their place of business and locked the doors about 6 p. m. At that time they had in their shop an uncertain number of turkeys, which belonged to various customers who had brought them there to be cleaned. Neither partner was able to state definitely the exact number of turkeys in their possession—their estimates varying from a dozen to eighteen or twenty—nor whether all of the turkeys were tagged or marked. When the partners arrived for business the next morning, November 24, they found that the door of an adjoining garage and the door to their shop had been forced open, and that the large plate glass window on the door to their shop had been smashed. The lock on the door was broken and the floor of the shop was covered with turkeys and papers. Both partners positively testified that four of the turkeys were missing.

Officer Loftus of the San Francisco Police Department testified that he was on duty in the Mission district during the early morning hours of November 24. While patrolling on foot about 1:15 a. m. along Twenty-fourth Street, near South Van Ness Avenue, some eight blocks from the butcher shop, he noticed a Ford panel delivery truck. In the body of the truck he saw some large bags with turkey legs protruding. He watched the truck from a nearby doorway, and in a few minutes he saw two men come out of a barber shop and start to enter the truck. Defendant was admittedly one of the men. The other was one De Mato. According to the officer, defendant was in the act of seating himself behind the

Both Tassi and Fey testified that the three turkeys returned to them by the police had been stolen from their shop. Tassi stated that after having handled a turkey, he would know it later by just looking at it. With respect to the identification of one of the turkeys, he testified that it belonged to a lady by the name of White; that it carried- a tag from the California Poultry Company and had the salesman’s name—Al—written thereon. The tag was introduced in evidence. Fey testified that he believed all three turkeys had, for purposes of identification, tags from the California Poultry Company showing the persons to whom they belonged, but only the one mentioned was produced at the trial.

Inspector McCann of the San Francisco Police Department testified that defendant was apprehended by him in a Market Street theatre on December 1, 1943. He stated that he saw defendant on the stairway coming from the balcony; that defendant, upon seeing him, turned and ran up the stairs; that he chased defendant; that defendant tried to escape through a balcony fire door, but was caught when the door failed to open. He further testified that he questioned defendant in the lobby of the theatre and later that day at the Hall of Justice. The officer’s testimony is to the effect that during such questioning defendant denied that he could drive an automobile but that in searching through defendant’s

Inspector Hunt of the San Francisco Police Department also testified as to conversations had with defendant at the Hall of Justice. He stated that he was present during McCann’s questioning of defendant, and he generally corroborated that officer’s account as above noted, with the exception that he said that defendant then told them that the truck belonged to his brother. With respect to another conversation had with defendant the same day, Hunt testified that defendant said that he had driven De Mato to Eighteenth and Mission Streets; that there De Mato got out and he stayed in the truck; that a few minutes later De Mato returned with four turkeys, which he threw in the back of the truck; that they then drove to the barber shop on Twenty-fourth Street and delivered one of the turkeys. Hunt also testified that defendant had a driver’s license with him that day and that it, with other papers, was returned to defendant by McCann, but unlike the latter officer he had not examined the license and was unable to say whether or not it was in defendant’s name. Hunt further testified that he saw three turkeys at the Hall of Justice and that on one was the tag that had been introduced in evidence; that at that time there were no bags on the turkeys, as some one had thrown them off. The barber was not produced as a witness.

Defendant took the stand as the sole witness on his own behalf. He produced a letter from the Motor Vehicle Department stating that no operator’s license had been issued

Turning now to the points presented by defendant on this appeal, his first argument rests upon the fact that the information charged that he burglarized a butcher shop at 3299 Sixteenth Street, San Francisco, while Tassi, one of the owners of the shop, in his testimony placed it at 3297 Sixteenth Street. But, as above noted in the recital of the evidence in this case, Fey, the other owner, in exact substantiation of the charge, testified that the building was located at 3299 Sixteenth Street—thus a complete answer to defendant’s objection of variance between pleading and proof. However, even if the testimony did establish the location of the shop to be 3297 instead of 3299 Sixteenth Street, the variance would not be fatal. Of course, it is elementary that every fact or circumstance necessary to constitute the crime charged must be alleged and proved, and the proof must correspond with the allegations in the

It was not necessary that the exact address of the building should have been included in the information so long as the building was described with sufficient particularity to show that it came within the classification set forth in the statute, and so long as defendant was apprised of the particular crime against which he had to defend. (Pen. Code, § 459.) The information need go no further in particularizing the place than to allege the county in which the crime was committed. (4 Cal.Jur. § 14, p. 728; People v. Geiger, 116 Cal. 440 , 442 [ 48 P. 389 ]; People v. Webber, 133 Cal. 623 , 624 [ 66 P. 38 ] ; People v. Redman, 39 Cal.App. 566 , 568 [ 179 P. 725 ].) The Geiger case is directly in point. There the information charged a burglary in feloniously entering “a building at St. Helena in the county of Napa.” The proof was that the building was situated a mile and a half from St. Helena. In holding the variance not to be material, the court said at page 442: “It does not appear that a designation of the local vicinage of the building was at all important for its identification, and unless necessary

For his second point of argument defendant attacks the sufficiency of the evidence upon the claim that the prosecution failed to prove that the turkeys in the truck were turkeys stolen from Tassi and Fey. While it must he conceded that there is some confusion in the evidence on this issue and the record is not so clear as might he desired, still the sufficiency of the identification of the stolen property and the reconciliation of any discrepancies in the respective witnesses’ statements at the trial were for the jury. Pertinent to observe here is the fact that both Tassi and Fey positively identified a certain tag of ownership as having been affixed to a turkey in their shop the night before the burglary, and that tag, later found attached to one of the turkeys in the truck admittedly operated by defendant, was introduced in evidence. In these circumstances it was for the jury to determine whether or not to accredit defendant’s entirely uncorroborated account of his previous purchase of the turkeys in his possession at the time of his arrest. “If it were the rule that trial judges or juries must decide cases in conformity with the defendant’s testimony, few criminals would ever be convicted.” (People v. Rose, 26 Cal.App.2d 513 , 517 [ 79 P.2d 737 ].) As was said in People v. Tedesco, 1 Cal.2d 211 , 219 [ 34 P.2d 467 ], with regard to the function of an appellate court in reviewing the correctness of factual determinations made in the course of a criminal trial: ‘ ‘ This court has uniformly held that where there is evidence tending to support a verdict we cannot disturb the verdict upon the ground that it is not sustained by the evidence; and the application of this rule is strengthened in a ease where, as here, the trial court has refused a new trial. It is settled beyond controversy that the weight to be accorded the evidence is a question for the jury.”

Connected with the point of defendant’s credibility is his third and final argument challenging the propriety of the trial court’s ruling in admitting into evidence a record of defendant’s previous commitment to the Preston School of Industry. As above stated, defendant was the sole defense witness. On cross-examination he was asked if he had ever been convicted of a felony. He replied he had not. He was then asked if he had ever pleaded guilty to a felony. The objections of his counsel having been overruled, he replied

There was no error in allowing this record to be presented to the jury. In this state the testimony of a witness may he impeached by proof that he has suffered the prior conviction of a felony. (Code Civ. Proc., § 2051.) This rule applies to a defendant who testifies in his own behalf in a criminal trial despite the fact that such evidence may tend to prejudice him in the eyes of the jury. (People v. LaVerne, 212 Cal. 29 , 32 [ 297 P. 561 ]; People v. Romer, 218 Cal. 449 , 452-453 [ 23 P.2d 749 ].) The nature of the crime of which he was convicted is a proper subject of inquiry in establishing the fact of his conviction. (People v. David, 12 Cal.2d 639 , 646 [ 86 P.2d 811 ], and eases there cited.) That a “conviction” for purposes of impeachment means nothing more than a verdict of guilty is firmly held in (People v. Ward, 134 Cal. 301 [ 66 P. 372 ], where it is said at page 307: “It is contended that at the time the witness testified he had not been ‘convicted of a felony’; that to sustain the ruling of the court, it must be assumed, as a matter of law, that the verdict of guilty constituted a ‘conviction. ’ That such verdict does constitute a conviction, within the ordinary as well as the technical meaning of the word, seems to be well settled.” (See, also, Pen. Code, § 1151; In re Anderson, 34 Cal.App.2d 48 , 51-53 [ 92 P.2d 1020 ].) A plea of guilty is equivalent to the verdict of a jury. (Wharton’s Criminal Evidence, vol. 3, § 1376, p. 2263; People v. Kepford, 52 Cal.App. 508 , 513 [ 199 P. 64 ].)

Burglary in the second degree is punishable by imprisonment in the state prison (Pen. Code, § 461) and is therefore a felony. (Pen. Code, § 17.) While it is also punishable, in the alternative, by a county jail sentence (Pen. Code, §461), its status can be changed only by “a judgment imposing a punishment other than imprisonment in the state prison.” (Pen. Code, § 17; In re Miller, 218 Cal. 698 , 700-701

Analogous factual considerations formed the basis of the decision in People v. Maloney, 92 Cal.App. 371 [ 268 P. 472 ], that it was not error to admit in evidence for impeachment purposes the record of a reform school commitment. There, after defendant, on cross-examination, had denied previous conviction of a felony, the prosecution introduced documentary proof of his having “pleaded guilty in the Superior Court ... of violating section 146 California Vehicle Act, a felony” and his “commitment ... to the Preston School of Industry.” In sustaining the propriety of the challenged procedure, the appellate court aptly distinguished the cases of People v. Hoffman, 199 Cal. 155 [ 248 P. 504 ], and People v. Adams, 76 Cal.App. 178 [ 244 P. 106 ], on which defendant here relies as ground for reversal. Accordingly,. it is said at page 373 : “The facts in those two cases were very different from the facts in the ease at bar. In the Hoffman case the record of the juvenile court was held to be erroneously admitted for the reason that the proceedings in that court are not penal in their character. In the Adams ease the error consisted in the admission of evidence showing that defendant had been committed to the Whittier Industrial School at the age of thirteen years. In neither case could it be said that defendant had been convicted of a felony. The commitment which was admitted in evidence in the case now before us did not issue in a proceeding in the juvenile court. ’ ’ Following the Maloney ease and quoting at length therefrom is the opinion in People v. Goodwin, 105 Cal.App. 122 , 124-126 [ 286 P. 1087 ], holding that the trial court had properly admitted evidence that the defendant had been convicted of grand larceny and had then been committed to the Preston School of Industry. To like effect is People v. Dykes, 107 Cal.App. 107 , 116 [ 290 P. 102 ].

Insofar as concerns the controverted point now under consideration, it manifestly is immaterial whether the defendant’s plea of guilty be made, as in the Maloney case, to a statutorily designated felony or, as here, it relates to an offense punishable in the alternative but deemed a felony “unless the [trial] court actually exercises [its] discretion by imposing only a

The judgment and order denying a new trial are affirmed.

Gibson, C. J., Shenk, J., Edmonds, J., Carter, J., Traynor, J., and Schauer, J., concurred.