People v. Smith

The defendant was convicted upon information charging him and one Edward Egan jointly with the crime of robbery. The two were separately tried and the defendant has appealed from the order denying him a new trial and from the judgment.

The facts of the case are that on the twenty-eighth day of October, 192'4, the complaining witnesses, Mr. and Mrs. P. I. Jacoby, returned to their home in Jackson street, in the city and county of San Francisco, at about 12 o’clock midnight and retired to their sleeping apartments upon one of the upper floors of the building. Their home had two entrances, one in the front of the house, through which they entered, and another in the rear, which was known as the tradesmen’s entrance, and was used by servants of the family. When the Jacobys entered their sleeping apartment two men, both masked and armed with black automatic pistols, confronted them and after robbing them of jewelry of the value of over #12,000, locked them in a closet and left without disturbing anything else in the house. When the Jacobys escaped from the closet they telephoned

Three days after the night of the robbery the defendant, Egan, and one Harry Wright were arrested while seated in a Ford sedan which was parked outside of Wright’s cleaning and pressing establishment. At the time they were talking to a woman by the name of Mamie Manning. The three men and the woman were all taken into Wright’s place of business and following a search the Jacoby jewels with one exception were found in Wright’s pocket. At that time in answer to the question from the police officers Wright stated in the presence of both the defendant and Egan that he had obtained the jewels from those two. Of this accusation neither the defendant nor Egan made any denial. At the same time upon a search of the premises a black automatic pistol was found as to which Wright stated at the time that he had seen the pistol in Egan’s possession that morning. To this no reply was made by either the defendant or Egan. On the same day while all the parties were present at the police station Wright made a written statement which directly charged defendant and Egan with the robbery. This statement was later read to both the defendant and to Egan in Wright’s presence and these two were asked whether they had anything to say regarding it and both failed to make answer. At the same time it was brought out that Delia Cooney, the cook in the Jacoby home, was a sister-in-law of Egan, and that a short time before the robbery the two Jacoby servants had visited a home in the city where they had met Egan and Mamie Manning, the woman who was with the defendant and Egan at the time of their arrest.

At the trial all the facts were placed before the jury for the purpose of showing the circumstances surrounding the condition of the robbery and the methods by which the par

[1] The main attack of the appellant is based upon the ground that the evidence is insufficient to support the verdict. At the outset it may be conceded that the evidence connecting the appellant with the commission of the crime is scanty, as is usually the case in eases of this nature where the party committing the crime by masking his features partially conceals his identity. But as said in People v. Willard, 150 Cal. 543 , 553 [ 89 Pac. 124 , 128], “This court cannot disturb a verdict unless there is no evidence to support it, or where the evidence relied on by the prosecution is apparently so improbable or false as to be incredible, or where it so clearly and unquestionably preponderates

[4] While it is true that possession of the stolen property immediately following a robbery is not in itself sufficient evidence to warrant a verdict of robbery, nevertheless slightly corroborative evidence of other inculpatory circumstances taken with the evidence of possession of the stolen property is sufficient to support a conviction. (People v. Cataline, 54 Cal. App. 36 [ 200 Pac. 1060 ].) Putting it in another way, possession of stolen property if unexplained “is an item to be taken into consideration by the jury, together with other incriminating circumstances in arriving at a verdict.” (People v. Reed, 58 Cal. App. 8 [ 207 Pac. 1026 ].) Appellant has cited People v. Fitzsimmons, 144 App. Div. 211 [ 128 N. Y. Supp. 996 ], People v. Mullen, 69 Cal. App. 548 [ 231 Pac. 588 ], and State v. Campbell, 69 Iowa, 556 [ 29 N. W. 604 ], as holding that the evidence in

Criticism is also made of the action of the trial judge in refusing to give certain instructions proposed by the appellant. [5] Instruction No. 1 advised the jury to return a verdict of not guilty. It is evident, of course, that if there was sufficient evidence to warrant the jury in arriving at a verdict of guilty this instruction would have been improper. [6] Objection is also made to the failure of the trial judge to give instruction No. 7 relating to the degree of credit which should be given to the various witnesses and particularly to the right of the jury to reject the entire testimony of a witness shown knowingly to have testified falsely on the trial. The attorney-general concedes that this instruction was a proper one and that it should have been given, but insists that its refusal does not constitute prejudicial error. We have read the entire record with care and are satisfied that no prejudicial error arose from the failure to give this instruction, and, in fact, this seems to be conceded by the appellant as he has not pointed to a single incident in the course of the trial to which the instruction might have been applicable.

[7] Objection is also made to the action of the trial judge in admitting in evidence the pistol which was found in the shop of the witness Wright at the time of the arrest of the appellant and Egan. In this connection People v. Mullen, 69 Cal. App. 548 [ 231 Pac. 588 ], is cited and it is argued that the eases are parallel. We see a clear distinction between the Mullen case and this inasmuch as in this case the pistol was discovered by the arresting officer in the presence of the appellant and his codefendant and at that time and while all these parties were present Wright told

[9] Objection is also made to the refusal of the trial judge to give to the jury appellant’s proposed instruction No. 8, to the effect that the written statement of Harry Wright, which had been read to the appellant and his co-defendant while they were under arrest, should not be taken as evidence against the appellant of the facts stated therein, but that it should be used solely for the purpose of evidencing the conduct of the appellant while it was being read to him and thereafter. When the written statement was offered in evidence it was distinctly stated that such was the purpose of the offer and at that time the trial judge clearly informed the jury that it was an accusatory statement only to show the conduct of the appellant at the time and nothing else “and they are not to consider any of these facts as being proven, or that this statement in any way tends to prove the facts.” In closing his formal instructions the trial judge advised the jury regarding the evidence of a defendant standing mute in the face of an accusation and “That the reason for admitting the accusation in such cases is to explain the conduct of the accused”; and again “regarding statements which may have been read, that they are not, of themselves, to be taken as independent evidence of the facts therein contained.” We see no prejudicial error resulting from the refusal to give the instruction as requested by appellant.

Other grounds urged by the appellant do not require consideration.

Judgment and order affirmed.

Sturtevant, J., and Langdon, P. J., concurred.