People v. Moulton

Dennis Leroy Moulton and his brother, Larry, were found guilty by a jury of two counts of burglary in the second degree. Dennis alone appeals and contends that the trial court erred in the introduction of certain evidence and that the district attorney committed prejudicial misconduct. There is no merit in either of these contentions.

Viewing the evidence in the light most favorable to the People, as we must on appeal from a jury verdict, it appears that about noon on Saturday, September 30, 1961, the appellant and his brothers, Larry and Mickey, went to Brady’s Repair Shop just north of Crescent City in Del Norte County. Mr. Brady left about 12:30 p. m. before all of the repair work on Dennis’ black and white D.K.W. was finished. Mr. Brady’s son, Jim, and Mickey finished the work on the appellant’s car; then Jim Brady put all the tools away, locked the shop and left at the same time as the appellant and his brothers, about 1 p. m. When Mr. Brady returned to his shop on Monday morning [October 2], he found that one of the windows had been broken and certain tools were scattered about the floor. Mr. Brady had been there for only a few minutes when Deputy Sheriff Black came in with some items and asked Mr. Brady whether they belonged to the shop. Mr. Brady identified a pair of tin snips, a sledge hammer, a ball peen hammer, a screw driver, a punch, as well as an iron bar, which he had taken out of Dewey Hansen’s mowing machine the year before.

The deputy sheriff indicated that one screw driver, the sledge hammer, the punch and iron bar had been found on the floor of the Del Norte Ice and Cold Storage plant early Sunday morning in the investigation of a burglary, and the rest in the trunk of the appellant’s ear. Later the same day, when Mr. Brady’s bookkeeper came in, she discovered that the check protector was also missing. Mr. Brady notified the sheriff’s office, and the missing cheek protector was subsequently found underneath the seat of a vehicle parked in the appellant’s backyard.

About 11:30 on the evening of September 30, 1961, Mr. Viggo Hoyer, a private patrol operator, in the course of his duties, was checking the doors of the Del Norte lee and Cold Storage plant south of Crescent City. He found one of the plant doors open, entered and discovered someone had tampered with the safe. There was a warm acetylene torch and several tools on the floor, as well as insulation clay from the safe. He observed a small black and white foreign car out

Undersheriff Smallwood noticed that the car was the only one in the area without frost on its windshield and that the motor was warm. As he found no registration slip on the steering post, he entered the car, opened the glove compartment and found a letter addressed to the appellant. He then proceeded to the appellant's home and asked his wife to have her husband contact him when he returned. The appellant’s wife stated the appellant had gone downtown with his brother in his small black and white car. Undersheriff Smallwood remained in the vicinity of the Moulton house and waited until the appellant and his brother arrived in a cab. After talking with the cab driver and ascertaining that the driver had picked up the appellant and his brother at a service station across from the ice plant, he entered the house and arrested the appellant and his brother, Larry. The appellant and Larry had fire clay on their shoes identical to the insulation clay from the damaged safe at the ice plant.

The appellant and his brother told conflicting stories as to how the car happened to be in the area next to the ice plant. The appellant indicated that his ear would not run at all. Subsequently, Undersheriff Smallwood found that the car operated without any difficulty or noise except for the reverse gear. The next morning, Sunday, October 1, Undersheriff Smallwood searched the trunk of the car and found the above mentioned tools and instructed his deputy to take them around to the various auto repair shops the first thing Monday morning to see if they could be identified.

The appellant and his brother, Larry, testified that Jim Brady had left the tools found in the car on the ground after locking the shop, and that they put the tools into their ear and asked their younger brother, Mickey, who knew the Bradys, to return them. The appellant further testified that on the evening of September 30, they parked the car near the ice plant about 11:30 p. m. because it would not run and went to look for a mechanic. After an unsuccessful attempt, he decided, to drive the car home but changed bis mind when

The first argument on appeal is that the tools found in the trunk of the appellant’s car and subsequently received in evidence were illegally obtained because they were discovered during a search conducted without a warrant and at a time when the officers had no probable cause to believe that the appellant had committed a felony. The contention is directed at both the activities of Mr. Hoyer and the activities of Deputy Sheriff Butters who saw the tools in the trunk of the appellant’s car and Undersheriff Smallwood who entered the appellant’s car after seeing no registration slip on the steering column. The appellant’s contention is without merit. As to Mr. Hoyer, there is no question of an unlawful search, as he merely observed that which was in plain sight (People v. Martin, 45 Cal.2d 755 [ 290 P.2d 855 ]), and notified the. authorities.

The record is silent as to whether the officers had a search warrant. Thus, it must be presumed that the seizure was lawful (People v. Northrup, 203 Cal.App.2d 470 [ 21 Cal.Rptr. 448 ] ; People v. Smith, 171 Cal.App.2d 568 [ 340 P.2d 640 ]; People v. Goldberg, 152 Cal.App.2d 562 [ 314 P.2d 151 ]). Furthermore, even in the absence of a search warrant, Undersheriff Smallwood had reasonable and probable cause to search the vehicle at the time he entered the car as he was aware of the fact that a burglary had recently been committed nearby, and the car had a warm motor and carried no registration (People v. Simons, 208 Cal.App.2d 83 [ 25 Cal.Rptr. 57 ] ; People v. Anushevitz, 183 Cal.App.2d 752 [ 6 Cal.Rptr. 785 ]). Furthermore, the search of the appellant’s automobile was made after the arrest of the appellant. As the arrest was based on reasonable cause, the search of the automobile was lawful as reasonably incidental to the arrest (People v. Burke, 208 Cal.App.2d 149 , 158 [ 24 Cal.Rptr. 912 ]).

The next argument on appeal is that the district attorney was guilty of prejudicial misconduct in his cross-examination of the appellant about his prior conviction. The appellant was charged with a prior felony which he admitted before trial. As the appellant chose to take the stand on cross-examination, the district attorney properly asked whether he had been convicted of a felony. Upon receiving an affirmative answer, he asked: “More than- once?” The appellant replied negatively and the district attorney continued; “Q. Were

Appellant contends that the above quoted portion of the cross-examination was improper and highly prejudicial. We cannot agree. As appellant had admitted only one prior felony, the question was proper (People v. Miller, 188 Cal.App.2d 156 [ 10 Cal.Rptr. 326 ]). The length of his sentence

was volunteered by the appellant as was the matter of the Oregon conviction which appellant raised on direct examination. Thus, the district attorney could question him about the Oregon conviction for the use of narcotics, even though a misdemeanor (People v. Richardson, 74 Cal.App.2d 528 [ 169 P.2d 44 ]). In view of the overwhelming evidence indicating the guilt of the appellant, we do not think that the questions by the district attorney constitute prejudicial error.

Judgment affirmed.

Shoemaker, J., and Agee, J., concurred.