People v. O'Brand

Having been convicted of attempted burglary in the second degree defendants have assigned five errors as grounds for reversal of the judgment.

They contend that their cause was prejudiced by the court’s allowing “evidence of narcotics to be introduced.” The fact that such proof might have been prejudicial is not a ground for exclusion. The objection to it was made in the course of the testimony of a police officer who was detailing the conversation had between the narcotic inspector and appellant Beck. After the latter had answered that he was not using narcotics, in response to other questions, he stated that 0 ’Brand had sent him money to buy some opium from a Mexican; that he had received the money and attempted to make the purchase. There was no error in the court’s ruling. The object of the attempted burglary was a drugstore in which there was a stock of narcotics consisting chiefly of opium derivatives. Also, in the room of O’Brand there was found a bottle of theominal, an eye dropper and other articles commonly possessed by the users of narcotics. Therefore, proof of 0’Brand’s desire for narcotics was competent to establish motive for attempting to burglarize the drugstore. While the general rule forbids the admission of evidence of other crimes and degrading practices unrelated to any issue on trial, it is the settled law that where such proof is relevant to an issue in the case on trial, it is admissible notwithstanding it tends to show immoral conduct or other crimes. The law will not permit justice to be defeated by rejecting evidence simply because it involves other crimes or gross immorality. (People v. Zatzke, 33 Cal.2d 480 , 484 [ 202 P.2d 1009 ] ; People v. Peete, 28 Cal.2d 306 , 315 [ 169 P.2d 924 ].) Proof of motive will not be excluded merely because it may be prejudicial to the accused if it is relevant and material. (People v. Weatherford, 78 Cal.App.2d 669 , 687 [ 178 P.2d 816 ] ; People v. Hall, 27 Cal.App.2d 440 , 444 [ 81 P.2d 248 ].)

Appellants assign as prejudicial the argument made by the prosecutor to the jury in reciting that the narcotic inspector had found discarded substances in the room of appellant O’Brand and that since Beck had brought a narcotic from Los Angeles, the logical place for them to attempt to get

Appellants deem themselves to be aggrieved by the court’s admitting evidence of Beck’s prior conviction for violating section 146 of the Motor Vehicle Act. (See Stats. 1923, p. 564.) Aside from the fact that the information did not accuse him of a prior conviction, the only other basis asserted for such contention is that since a conviction for this crime could have been punished by imprisonment either in the county jail or in the state prison it was incumbent upon the prosecution to follow up the proof of conviction with evidence that Beck had served a term in the state prison in expiation of his crime. The answer to such argument is that when a person who is on trial for having committed a felony testifies in his own defense the prosecution may for the purpose of impeachment elicit from him the fact that he has been previously convicted of a felony and the nature of his crime. (People v. Romer, 218 Cal. 449 , 452 [ 23 P.2d 749 ]; People v. Keosababian, 73 Cal.App.2d 476 , 479 [ 166 P.2d 619 ] ; People v. Dutton, 41 Cal.App.2d 866 , 871 [ 107 P.2d 937 ].) After Beck had denied a prior conviction for a felony his attention was directed to a particular conviction in 1925 and his counsel was directed to section 1203.4 of the Penal Code which permits a probationer to be released from all penalties and disabilities resulting from his crime. While appellants make no point out of the provision of the last cited section, they contend that instead of inquiring of Beck whether he had been convicted of a felony he was improperly asked whether he had been convicted of violating section 146: stealing an automobile without the owner’s consent, and that as a result of his affirmative

Appellants contend that they were prejudiced by the following instruction: “The word ‘wilfully’ when applied to the intent with which an act is done or omitted and as used in my instructions, implies simply a purpose or willingness to commit the act or to make the omission in question. The word does not require in its meaning any intent to violate law, or to injure another, or to acquire any advantage. ’ ’ They argue that it nullified all other instructions pertaining to “wilfull conduct and that it told the jury they could find defendants guilty even though the defendants had no intent to violate the law. ’ ’ Such argument ignores the three instructions which contain the following: ‘ ‘ The essence of burglary is entering a shop, store or other building with such specific intent . . . the act must be accompanied by a specific or particular intent without which such crime may not be committed ... in the crime of attempted burglary the necessary element is the existence in the mind of the perpetrator of the specific intent.”

In no case has it been held that defining “wilfully” in the language of the Penal Code is prejudicial error. (Pen. Code, § 7, subd. 1; People v. Kearney, 20 Cal.2d 435 , 439 [ 126 P.2d 612 ]; People v. Flores, 62 Cal.App.2d 700 , 705 [ 145 P.2d 318 ] ; People v. Saunders, 61 Cal.App. 341 , 344 [ 215 P. 120 ].) The authorities cited by appellants (People v. Mize, 80 Cal. 41 [ 22 P. 80 ] and People v. Snyder, 15 Cal.2d 706 [ 104 P.2d 639 ]) are not in point. Both involved an instruction in a case of attempted murder. In attempting to commit that crime a person is presumed to intend to do that which he voluntarily and wilfully does. He is presumed to intend the natural consequences of his acts. After a killing has been proved, the burden shifts to the defendant to justify, excuse or mitigate it. In the Mize and Snyder cases there was no argument that defendant did not strike the victim. In the case at bar the sole undisputed issue was whether appellants did attempt to burglarize the drugstore named in the information.

Appellants in effect assert that their conviction resulted from their being deprived of a fair and impartial trial in violation of the due process clause of the Fourteenth Amend

Finally, appellants assign as prejudicial error the court’s failure to instruct the jury that the oral admissions of defendant Beck should be viewed with caution, citing People v. Bemis, 33 Cal.2d 395 , 398 [ 202 P.2d 82 ], In the case of Bemis, his admissions were the only evidence of his guilt, whereas in the instant case the only purpose in proving Beck’s admissions was to establish motive. There was other evidence of his participation in the crime. Even though a cautionary instruction had been given, it is improbable that the jury would have reached a different verdict. (People v. Koenig, 29 Cal.2d 87 , 94 [ 173 P.2d 1 ].) The instruction on narcotics requires no additional discussion. The question whether an alibi was established is, like any other factual issue, solely for the jury’s determination. (People v. Ash, 88 Cal.App.2d 819 , 826 [ 199 P.2d 711 ]; People v. D’Elia, 73 Cal.App.2d 764 , 767 [ 167 P.2d 253 ].) There was no denial of due process of law or of any other right by the jury’s rejection of the evidence of an alibi offered by appellants.

The judgment and the order denying the motion for a new trial are affirmed.

McComb, J., and Wilson, J., concurred.

Appellants’ petition for a. hearing by the Supreme Court was denied August 4,1949.