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District Court of Appeal, Second District, Division 1, California.


Cr. 3644.

Decided: December 21, 1942

Morris Lavine, of Los Angeles, for appellants. Earl Warren, Atty. Gen., and Bayard Rhone, Deputy Atty. Gen., for respondent.

By count one of an information filed by the district attorney of Los Angeles County defendants were charged with the offense of burglary, while count two alleged the commission by them of the crime of grand theft. Each defendant was also charged with having suffered a prior felony conviction and with being armed with a .32 automatic at the time of their arrest. Subsequently, each defendant admitted the prior conviction charged against him, but there appears to have been no admission or finding concerning the charge that defendants were armed with a deadly weapon at the time of their apprehension. Following the entry of “Not Guilty” pleas to the offenses charged in both counts of the information, trial was had by the court without a jury, resulting in their conviction on both counts. This appeal is prosecuted from the judgments of conviction only.

An examination of the record reveals the salient facts to be that some time between 5:30 p. m. o'clock and midnight on March 11, 1941, the rear door of the office of the Department of Motor Vehicles in Pasadena had been jimmied, pried and forced open. The safe was taken from the building. There was contained in the safe some checks, $491.04 in cash and another amount of $1.50 in cash. The burglary was not discovered until one of the employees returned to work the following morning. The Pasadena Police Department located the safe approximately four miles away from the Motor Vehicle Department office on the morning of March 12. When the police arrived they found the safe sitting upright and the door thereof lying a short distance away. The checks which had been in the safe were strewn around. The safe was removed to the police department, where it was photographed and examined. It further appears that after the burglary here in question the defendants were arrested in Fresno, where they were questioned on March 28 by the Pasadena police, the latter of whom on the following day went to Las Vegas, Nevada, where they found an automobile bearing 1941 California license plates and registered to the defendant John S. Godlewski. A careful examination was made of the car and an aluminum door strip at the bottom of the door on the right hand side of the car. Pictures were taken of the automobile and particularly the tires and the impressions of the tires in the dirt. There was testimony that the photographs of the tire marks taken in Las Vegas appeared to be identical with the cast made near the back door of the Motor Vehicle Department in Pasadena on the morning following the burglary. The record indicates that at the time the defendants were arrested on March 16, 1941, the defendant Taranski was carrying a suit case containing an assortment of tools which were introduced in evidence and which included an eight pound sledge or jackhammer, a small crowbar or safecracking pry bar, a hacksaw, a cold chisel and flashlight.

The police physicist of the Pasadena Police Department analyzed the fire clay on the door of the safe by microscopic and ultra–violet ray examination to study the fluorescent properties of the material in the fire clay from the door and also the fire clay which was found on two of the tools taken from the suitcase being in the possession of defendant Taranski. It was testified that such examination developed that the fire clay on the tools had the same identical properties as the fire clay on the door of the safe. It also appears that while in the process of moving the safe in the automobile, some of the paint from the former came off and on to the vehicle, and it was testified that the paint which was left on the automobile was the same type of paint used on the safe. There was evidence at the scene of the burglary revealing that the safe had been dragged across the concrete floor into the vehicle whose tracks were found to have been identical with the tracks of the vehicle registered to defendant Taranski and found in Las Vegas, Nevada.

Claude Snyder, who operated a service station located two buildings and one vacant lot east of the offices of the Motor Vehicle Department, testified that between 10:30 and 11 o'clock on the evening of the burglary he was working in his station; that the place was closed for business but the lights around the station were on. At that time he saw defendant Godlewski walking along the sidewalk past the service station; that the defendant was walking rather fast at the approximate rate of 120 paces per minute. This witness was sitting approximately five feet from the sidewalk from where he had a good view of the defendant. He testified that he kept watching the defendant because he did not recognize him as anyone he knew or had seen in the neighborhood. There was also testimony that prior to the commission of the burglary both defendants were seen in the office of the Motor Vehicle Department by several employees thereof. The manager of an apartment house in the city of Los Angeles testified that she recognized both defendants; that defendant Godlewski (known to her by the name of Glosse) moved into her apartment house on January 24, 1941, and checked out on March 8. She testified that defendant Taranski did not live there but that she saw him in the company of his codefendant practically every day. When interviewed by the police officers in the jail at Fresno on March 28 both defendants stated that they had not been in Los Angeles or Pasadena and that they had never been south of Fresno; that they intended to go to Los Angeles but had never visited the latter city. However, when a police officer was bringing defendant Taranski to Los Angeles for trial the latter was again asked if he had ever been in Los Angeles and admitted that he had, stating that he lived there with his wife. In answer to the interrogatory as to why he denied on March 28, 1941, at Fresno, that he had ever been in Los Angeles his reply was, “Well, what would you do?” Neither defendant took the witness stand, nor did they offer any evidence.

The defendant Godlewski does not question the sufficiency of the evidence to sustain his conviction, but relies for a reversal of that judgment upon the fact that the original complaint filed against him in the justice court was dismissed pursuant to section 1381 of the Penal Code and that such dismissal operates as a bar to the filing of a subsequent complaint and information based on the same facts. In that connection, it appears that on April 2, 1941, a complaint was filed in the justice court of Pasadena charging the defendant with the offenses with which we are here concerned and a warrant was issued. According to the affidavit of defendant Godlewski in support of his motion to dismiss the present charge by reason of the dismissal of the prior complaint, he states that on April 17, 1941, when he was incarcerated in the state prison at San Quentin after conviction for a felony in Fresno County, a “hold” order was placed against him by reason of the charge pending in the justice court of Pasadena. Pursuant to the provisions of section 1381 of the Penal Code the defendant demanded a trial on the charges then pending in the justice court or a dismissal thereof; and by reason of the provisions of the last cited section it was ordered by the justice court of Pasadena on February 18, 1942, that the case be dismissed as to such defendant. On April 21, 1942, the present information for burglary and grand theft was filed in the superior court.

The dismissal of the complaint in the justice court as to defendant Godlewski pursuant to section 1381 of the Penal Code did not operate as a bar to the present prosecution instituted by a subsequently filed information in the superior court. The cited code section provides that whenever a defendant has been convicted and enters upon a term of imprisonment in the state prison or is in the state prison serving a sentence, that upon the demand of such a person the district attorney must within ninety days after such demand bring any pending charge to trial, and in the event such action is not brought to trial within the prescribed time the court in which such charge is pending must, on motion or suggestion of the district attorney or of the defendant, his counsel, or of the State Board of Prison Directors, or on its own motion, dismiss such charge. It was pursuant to that section that the charge lodged in the justice court was dismissed on February 18, 1942. However, a new information was filed two months later by the district attorney in the superior court on April 21, 1942. In connection with the provisions of section 1381 it must be remembered that section 1387 of the Penal Code provides that an order for dismissal of an action “as provided in this chapter” (Chap. 8, tit. 10, pt. 2, Pen.Code), which is the same chapter that contains section 1381, is a bar to any other prosecution for the same offense if it is a misdemeanor; but section 1387 further provides that “an order for the dismissal of the action is not a bar if the offense is a felony.” Defendant Godlewski having been charged with the commission of a felony it seems clear to us that section 1387 of the Penal Code furnishes a complete and adverse answer to his contention that a dismissal of the complaint originally filed against him constitutes a bar to a subsequent prosecution for the same offense when such subsequent proceedings are brought within the statutory time.

It is urged by appellant Godlewski that in proceeding with his trial under the information filed after the dismissal of the first complaint in accordance with the mandate of section 1381 of the Penal Code, the court acted in violation of section 13 of article I of the Constitution of this state, which guarantees to an accused the right to a speedy and public trial. This claim upon the part of appellant cannot be upheld. The State of California has provided that whenever a defendant has been convicted for a crime, has been sentenced therefor to a state prison and has entered upon the service of such sentence, he shall have the right to demand that in any other prosecution commenced by indictment, information or complaint, and pending in any court of this state, that he be brought to trial within ninety days after he has filed such demand with the district attorney; and that in the event such proceeding is not brought to trial within such ninety days the court must, as heretofore pointed out, dismiss such charge. But by section 1387 of the Penal Code this state has expressly provided that such dismissal in a felony case shall not be a bar to further prosecutions (Ex parte Clarke, 54 Cal. 412). The court order dismissing an action under section 1381 of the Penal Code cannot be considered a judgment upon the merits of the case and amounts only to what might be termed as a judgment of nonsuit, a simple expression by the court in accordance with the statute that that particular proceeding shall not be further prosecuted. Such order of dismissal does not mean that the accused has been put in jeopardy within the meaning of the Constitution. It therefore follows that by the prosecution of defendant Godlewski on the subsequent information filed against him no constitutional right of his was invaded or violated. In re Begerow, 136 Cal. 293, 296, 297, 68 P. 773, 56 L.R.A. 528; People v. Disperati, 11 Cal.App. 469, 475, 105 P. 617; People v. Smith, 143 Cal. 597, 77 P. 449. This disposes of the only question raised by appellant Godlewski.

In urging a reversal of the judgments as to him, appellant Taranski relies solely upon his claim that the evidence is insufficient to sustain the judgments of conviction. As heretofore narrated, the evidence clearly established that just prior to the burglary appellant Taranski was observed at the scene of the crime in company with his codefendant, against whom the evidence of guilt was overwhelming. Five days thereafter, when arrested in company with his codefendant, appellant Taranski was carrying a suitcase containing numerous burglary tools, some of which according to the evidence were disclosed by microscopic and ultra–violet ray examination to have been used to force open the door of the safe at the Pasadena burglary. After their arrest defendants denied they had ever been in Los Angeles, but subsequently appellant Taranski admitted to the police that he had lived in Los Angeles; and when pressed for a reason as to why he had previously denied such fact, replied, “Well, what would you do?” Furthermore, it was definitely established by direct evidence that for a considerable period of time both defendants were daily observed together in defendant Godlewski's Los Angeles apartment. Neither of the appellants chose to testify at their trial or attempted to explain any of these incriminatory circumstances. In principle, testimony as to possession of tools used in a burglary, shortly thereafter, may be likened to the rules applicable to the possession of stolen property shortly subsequent to the commission of an offense. While it is true that standing by itself evidence of mere possession of tools used in a burglary is not sufficient, any more than is mere possession of stolen property to connect a defendant with perpetration of a burglary in which the property was taken, nevertheless, the possession by appellant Taranski of certain tools used in a burglary and larceny committed five days previously, is a circumstance which, taken in connection with the other incriminating evidence referred to by us, may be considered by the court or jury in determining the question of the guilt or innocence of a defendant charged with such burglary and larceny. If therefore, the court believed, as evidently it did from the evidence, that some of the tools found in the possession of appellant Taranski were used in the commission of the burglary and larceny charged against him, and were in his possession shortly after the crimes charged were committed, then the failure of such appellant to account for the possession or to show that possession of the tools was honest and innocent, is a circumstance tending to show guilt. To remove the effect of such possession as a circumstance to be so considered in conjunction with other suspicious facts such as were disclosed by the evidence herein, appellant was bound to explain the possession. A further review of the facts is unnecessary to justify the conclusion that the circumstances under which appellant Taranski was found in possession of the tools in question, when considered in connection with the other hereinabove related facts, furnish sufficient justification for the trial court to conclude that he was one of the guilty parties in the burglary and larceny charged against him. People v. Russell, 120 Cal.App. 622, 625, 8 P.2d 209; People v. Golembiewski, 25 Cal.App.2d 115, 117, 76 P.2d 717; People v. Shaw, 46 Cal.App.2d 768, 117 P.2d 34; People v. Ellis, 33 Cal.App.2d 616, 92 P.2d 431.

For the reasons herein stated the judgments and each of them, as to both defendants, are affirmed.

WHITE, Justice.

YORK, P. J., and DORAN, J., concurred.

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