People v. Smith

Having been convicted of burglary in the second degree, appellant demands a reversal of the judgment and the order denying his motion for a new trial. He maintains : The evidence is insufficient to support the verdict; prejudicial errors were committed in overruling his objections to the testimony of a chemist; certain photographs of his body were obtained in violation of the 4th and 14th Amendments to the Federal Constitution, and the Constitution of California (art. I, § 19); errors in instructions.

The Evidence, Sufficient

About 2:30 a. m. April 12, 1955, Officers Robertson and Miller of the Long Beach Police Department while cruising along Second Street heard falling glass on the premises of Miller Rental Company and observed a woman standing nearby. She ran south, then east through an alley, but was soon overtaken by Officer Robertson near a construction shack. The patrol car then arrived and the officers ascertained that the woman was Mildred Elizabeth Anthony, the codefendant of appellant, and had her enter their automobile. On returning to the building with the broken window pane, they observed a jagged piece of glass protruding upward and stained with a bloodlike substance. It was also on the wood of the door. After checking the building, the officers observed a 1951 Mercury automobile with its license plates so

While the foregoing inspections and conversations were in progress, Mr. Miller, proprietor of the rental company arrived, examined the inside of his building and boarded the broken door inside. At 6 a. m. Miller returned to his office at the police officers’ request, found the boards had been taken from the door and lay on the floor inside. Also, he discovered that a small muffin tin with five dollars in coin was gone from its place beneath the counter on the rental side of the room. The other side contained marine hardware and supplies. The two entrances at the front were so locked as to be opened on the outside only. The third entrance is on the side of the building where the pane was broken. Mr. Miller only had keys to the front doors.

Inspector Perle, observed a triangular mark at the base of the side door. It looked like moist blood. Technician Dillon of the Long Beach Police Department lifted latent finger prints from the triangular mark. They were found to be identical with the impression of appellant’s hand. The inspector found also two Philip Morris cigarette butts on the rug. Appellant smokes that make of cigarette. Officer Dillon also took prints from a 2-foot pine board found on the floor near the west door. They were the same as the impressions of appellant’s middle, and little fingers. Pieces of plaster, broken from the wall board in the Miller office by the laboratory technician, were found to contain blood.

About 10 a. m. of the same day, Detective Parris and Officer Wishon called at appellant’s apartment and were admitted. They examined him for scars and told him his ear had

Appellant contends that such evidence is insufficient to support the judgment. He argues first that where circumstances that are relied upon as proof of guilt are equally compatible with innocence as with guilt, there is a failure of proof, citing People v. Newland, 15 Cal.2d 678 [ 104 P.2d 778 ]. That is but a small part of the holdings of that decision. The paramount feature of the Newland case is the announcement that on an appeal based upon the insufficiency of the evidence, before the verdict can be upset “it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below.” (People v. Newland, supra, p. 681.) Under that authority, so long as there is substantial evidence, circumstantial or direct, undenied or contradicted, the reviewing court will not reverse a judgment merely because what might be deemed equally convincing evidence has been introduced at the trial on behalf of appellant. The fact that appellant explained the presence of blood on his clothes by his story of a fight near Wander Inn when he suffered a bloody nose; that the shirt and trousers in evidence are the same he wore in that fight; that he was cor

Rulings on the Admissibility op Evidence

The People called Officer Simonds for opinion testimony involving learning and experience in chemistry. The basis of appellant’s objection to such testimony was that Mr. Simonds held no university degree in that science. The objection was properly overruled. The witness had held the position of laboratory technician for the past 16 years; had studied in two midwestern universities and in two California universities; had studied the use of comparative microscopes, various substances and their composition with animal and vegetable and chemical compounds and most all the fields of chemistry and physics, had, after completing his course, taken one year in medical school. Opinions as to fibers taken from appellant’s clothing and from the rug at the scene of the crime are beyond the ken of jurors having only common knowledge and are therefore properly heard from experts only. (People v. Lovren, 119 Cal. 88 , 91 [ 51 P. 22 , 638].) As one skilled in the use of microscopes and learned in the science of chemistry, Officer Simonds was correctly permitted to testify that the brown splotches on the clothing of appellant as well as on that of Mrs. Anthony were blood and that fibers on appellant’s clothing were the same as those that came from the rug in Miller’s rental office. (Code Civ. Proc., § 1870, subdivision 9.) The determination of an expert’s qualification to testify as to matters relating to his specialty is primarily the function of the trial court and its ruling will not be disturbed in the absence of an abuse of discretion. (People v. Horowitz, 70 Cal.App.2d 675 , 689 [ 161 P.2d 833 ] ; People v. Salas, 17 Cal.App.2d 75 , 78 [ 61 P.2d 771 ].) Where an officer had had many years’ experience in investigating traffic accidents and reporting their causes, his opinion based on skid and gouge marks on the pavement and on the location of oil, broken glass and parts was ad

After appellant’s arrest, the officers took photographs to show the scars on his body. Objection to their receipt in evidence was made on the ground that “under the Cahan ease they were illegally obtained without a search warrant. ’ ’ Appellant now urges the court’s ruling was prejudicial and recounts that appellant was arrested, taken to the crime laboratory and there commanded to disrobe against his will, and without his consent his body was photographed for scars. He cites People v. Irvine, 347 U.S. 128 , 132 [ 74 S.Ct. 381 , 98 L.Ed. 561 ] ; Rochin v. California, 342 U.S. 165 , 174 [ 72 S.Ct. 205 , 96 L.Ed. 183 , 25 A.L.R.2d 1396 ] and People v. Cahan, 44 Cal.2d 434 [ 282 P.2d 905 ], in support of his contention that the admission of such photographs of his body was illegal and prejudicial. There is no evidence that the photographs were obtained by the exertion of “brutal or shocking force” as in the case of Rochin. The body of appellant was photographed after he had been arrested and in a manner compatible with a proper administration of law. When a culprit has been justifiably arrested for a felony, he can not expect to have the red carpet rolled out for his reception. It is the duty of law-enforcing agencies, after such arrest, to explore every area suggested by the circumstances of the apprehension of the accused to the end that if the latter is probably guilty, the evidence will have been so assorted and systematized as to expedite judicial procedure, and if the evidence should not in the opinion of the People’s counsel warrant a trial, the accused will be promptly discharged.

Appellant was examined and the photographs were taken at three p. m., in the crime laboratory of the Long Beach Police in the presence of Officer Beck, Inspectors Parris and Wishon and the technicians. The photographs were taken while the accused was under questioning concerning his bloody shirts. There was nothing brutal or shocking in such procedure. (See Rochin v. California, supra, p. 172.) It was not offensive to the fundamental constitutional guaranties against abridgment of the due process clause. (See Snyder v. Massachusetts, 291 U.S. 97 , 105 [ 54 S.Ct. 330 , 78 L.Ed.

Instructions Not Prejudicial

Appellant complains of the following instruction:

“All persons concerned in the commission of a crime who either directly and actively commit the act constituting the offense or who knowingly and with criminal intent aid and abet in its commission or, whether present or not, who advise and encourage its commission, are regarded by the law as principals in the crime thus committed and are equally guilty thereof.”

Appellant deems himself to have been aggrieved by the phrase: “whether present or not.” He says: Since Mrs. Anthony had the keys to appellant’s ear and his hammer was in it at the time of the burglary, the jury might have concluded that even though Smith was not present, he advised defendant Anthony to commit the crime.

It is the law that an instruction is proper when it is consistent with any reasonable inferences the jury might have drawn. (People v. Latona, 2 Cal.2d 714 , 725 [ 43 P.2d 260 ] ; People v. Perkins, 75 Cal.App.2d 875 , 880 [ 171 P.2d 919 .]

The court properly performs its constitutional functions when it instructs the jury upon any material question upon which any substantial evidence has been introduced whether it was direct and positive or merely circumstantial. (People v. Perkins, supra.) Certainly, if from the evidence, the jury could have inferred that appellant advised Mrs. Anthony to burglarize the office of Miller Rental Company, under the cited authorities, the instruction was proper. People v. Fremont, 22 Cal.App.2d 292 [ 70 P.2d 1005 ], is not applicable. That judgment was reversed because the

Appellant criticizes the following instruction:

‘ ‘ Evidence, if any, that defendant, on one or more occasions other than from the witness stand, made false, contradictory or misleading statements concerning the charge against him which now is being tried (or that he endeavored to procure false or fabricated evidence to be produced at the trial) may be considered by the jury as a circumstance tending to prove a consciousness of guilt, but is not sufficient of itself to prove guilt. The weight to be given to such a circumstance, and the significance, if any, to be attached to it, are matters for the jury to determine.”

The giving of that instruction was unfortunate. The fact that appellant offered his alibi, testified in support of it and called witnesses in support thereof is not such behavior as would justify the instruction. To justify such an instruction, the defendant must be guilty of having made some positive attempt to mislead the jury with reference to the act of which he was accused.

Withal, however, the instruction was not prejudicial and the technical error does not warrant a reversal. (Const., art. VI, § 4½.)

Judgment affirmed.

Pox, J., and Ashburn, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied July 11, 1956.