People v. McNamara

Defendant was charged by information with the crime of burglary. Upon arraignment he pleaded not guilty. He was tried and convicted of the offense in the second degree. Thereafter he presented motions for a new trial and in arrest of judgment. These motions were denied, and he was sentenced to imprisonment for the term prescribed by law. This is an appeal from the judgment and from the order denying the motion for a new trial.

The main point relied upon for a reversal is that the evidence is insufficient to justify the verdict. It appears therefrom that Mrs. Agnes Murray, the complaining witness, on the evening of March 3, 1923, at about 7 o’clock P. M., left the flat where she was living at 892 Eddy Street, in the city of San Francisco, and returned shortly after midnight. She then discovered that a ladder had been placed against the house, and upon investigation ascertained that her personal effects had been disturbed and some of her clothing was missing, among which was a certain black dress. It was

“Statement of Grace Ford, April 2, 1923.

“My true name is Grace Ford, 23 years of age; live in Coronado Hotel, 373 Ellis Street, room 411. Have lived there three or four months with Joseph H. McNamara, now charged with burglary in the city prison. I have lived off and on with McNamara for about a year and a half.

“About March 3d, 1923, McNamara brought a dress to our room; it was a little after 9 o’clock in the evening. This dress was the one which Mrs. Murray identified in the Coronado Hotel lobby as hers, the one I was wearing. When McNamara brought the dress to the room he said, ‘What do you think of the dress?’ I said, ‘Swell. Give it to me.’ He said, ‘Give you hell.’ He hung it up in the clothes closet. One morning some time later he said, ‘Try it on.'

I did. He said, ‘It looks swell on you.’ He said, ‘Take it off.’ I did. He told me if anyone ever asked me when I was wearing it on the street or if it was in the room to tell them that I had bought it.

“About March 24, 1923, I visited him in the city prison. He said to me, ‘I see you have the dress on.’ I told him I had been downstairs with the detectives and was going to make a statement. He shrugged his shoulders and said nothing. ’ ’

Subsequently this statement was read to the defendant in the presence of the Ford woman and certain police officers, at which time he refused to state whether it was true or not. Later, however, in conversing with Grace Ford in thel hearing of the officers defendant made certain statements with reference thereto the substance of which was related by one of the officers at the trial as follows:

“McNamara said, ‘Did you write them statements, Grace?’ Grace said, ‘No, but I had a talk with my dad, and he told me to tell the truth, which I did, and the officers wrote them down and read them and I signed them, and you know they are true.’ McNamara said, ‘I just beat two raps worse than this one. So can you. Stand pat; they have nothing on us,

and we will get out of this one.’ Grace said, ‘I will not lie. I told the truth to them. It was you who got me into this jam by bringing those things to the room and giving them to me. Now you tell the truth and get me out. You know you told me to tell anybody 'that I bought them. ’ ’ ’

The Ford woman was a witness at the trial, and she testified that she had made the statement and that it was true. On cross-examination she admitted that she had declared to defendant’s counsel that the statement was false and that she had bought the dress from another woman, but on her redirect examination she again reasserted that her admission to defendant’s counsel was false and that her signed statement was true.

The evidence as above narrated is all that was had at the trial, and appellant contends that it is insufficient to convict. Our attention is drawn to the fact that there is no direct evidence tending to show that defendant committed the crime charged, or that he ever had possession of the stolen article. Upon the question of possession it is argued that the authorities are uniform to the effect that the possession of recently stolen property, in order to be evidence against the accused, must be a personal and exclusive one, for the reason that such character of possession alone indicates that the goods have come to the possessor by his own act or with his consent. Accordingly it is claimed that as the evidence does not show exclusive possession in the defendant it is insufficient to convict.

We do not so view the evidence. [1] The statement of the Ford woman shows that defendant brought the garment in question to the apartment where she and the defendant were living. It further shows that notwithstanding the fact that they occupied the apartment together the defendant exercised a proprietary control of the stolen garment. Moreover, under these circumstances the jury was entitled to conclude that whatever possession the Ford woman may have had of the garment was the possession of defendant. (People v. Porter and Young, 64 Cal. App. 4 [ 220 Pac. 20 ].)

In this connection it is further contended that even assuming the possession to have been in defendant the mere possession of recently stolen articles is insufficient to justify a conviction.

[3] Not only did the defendant remain silent when the statement was read to him, but later and in the presence of his accuser and the officers he made the inculpatory statements above referred to. These were circumstances which the jury had a right to consider.

[4] We are cited to the recent case of People v. Patterson, 64 Cal. App. 223 [ 221 Pac. 394 ], in support of the contention that the trial judge committed prejudicial error in allowing the statement of the Ford woman to be read to the jury. We do not deem a discussion of that case necessary. There the defendant was not confronted with the party making the accusatory statement; but even if we assume that the admission in evidence of the statement in the instant case was error, the defendant was in no manner prejudiced thereby. The Ford woman was a witness at the trial, and she testified to practically the same matters contained in her statement, and, as heretofore shown, she was cross-examined at length, and it is not contended that her evidence was not competent or material.

[5] And, finally, it is claimed that the district attorney violated a right of defendant when he gave utterance to the remark that “not a single piece of testimony has been

No other questions are presented.

Prom what we have said it follows that the judgment and order should be and they are hereby affirmed.

St. Sure, J., and Short, J., pro tern., concurred.