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District Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Oscar Leon WILKES and Lewis Edward Jones, Defendants and Appellants.

Cr. 3042.

Decided: February 25, 1955

Carl B. Shapiro, Fairfax, for appellants. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., W. O. Weissich, Dist. Atty. of Marin County, Roger Garety, Chief Criminal Deputy, San Rafael, for respondents.

Appellants, Wilkes and Jones, appeal from a judgment of conviction of burglary, committed in Marin County on January 31, 1954. They were arraigned on March 1, 1954 and entered pleas of not guilty on March 8. After trial by jury, verdicts were returned finding each defendant guilty of burglary in the second degree. Motion for new trial was denied.

It is contended on this appeal that the evidence is insufficient to support the judgments of conviction, in that appellants' conviction rests exclusively upon circumstantial evidence that is weaker than that in any reported case in which a conviction has been upheld.

The burglary with which appellants were charged, occurred at the Village Inn at Novato in Marin County sometime between 3:30 a.m. and 7:00 a.m. on January 31, 1954. A bartender at the Village Inn placed the money in the safe, locked the safe and the door leading to the room in which the safe was located, and left the premises between 3:30 a.m. and 3:45 a.m. on the morning of January 31. When another bartender arrived at 7:00 a.m. on the same day, he noticed that the Dutch door in the rear of the building had been forced open, and the door leading to the room containing the safe had been broken open. The safe had been badly damaged. Its dial was detached and lay on the floor. The owner of the bar estimated that approximately $1,674 in money was taken from the safe and one and one-half cases of whiskey from the bar.

A thorough search revealed no complete recent fingerprints, indicating that the burglars must have worn gloves. Certain chips of paint were discovered on the floor a few feet from the safe by a deputy sheriff who was called to investigate the crime.

Appellants were seen in the early morning hours of February 2, 1954, by a deputy sheriff who found them asleep in an automobile in a residential district of Fresno. With the assistance of two other officers he placed appellants under arrest. The officers searched the car, and found in the trunk a pair of vise grip pliers with drift punch attached. Both appellants denied ownership of this tool, which is a burglary tool commonly used for safe breaking. A tire iron was found in the front of the car, and Jones admitted that he owned it although at the trial he denied that it was in his car on the night of the arrest. Paint smears appeared on the tire iron which had been transferred to it under pressure. The paint smear consisted of three layers, the top layer, a certain shade of cream, the middle layer, a different shade of cream, while the bottom layer was a reddish brown paint. A few small chips of paint with the same color arrangement also appeared on the tire iron. The paint on the tire iron was identical in shades and arrangement to the paint chips which were found on the floor near the safe.

In the back seat of the car were certain newspapers, a San Francisco Examiner dated January 27, 1954, a San Francisco Chronicle of January 30, 1954, and a San Francisco Examiner of February 1, 1954. Both appellants said that the Examiner of February 1 was bought in Bakersfield, but denied any knowledge of the other papers.

The officers found two boxes of washers in the car, one in a suitcase in the trunk, and another on the floor. (People's Exh. 15 & 16.) Wilkes when questioned about one box of washers, the People's Exhibit No. 15, admitted that they had been used in building a trailer in Arkansas, and that he had thrown the washers which had been left over into his suitcase. At the trial he denied that he had ever seen the washers or that he had made the above statement concerning them to the police. The manager of the hardware store in Novato identified this box of washers by means of certain markings which he had made on the box in taking inventory. He was therefore able to state that this box had been in the Novato store until shortly after the first of the year 1954. Wilkes denied ever having been in Novato.

Two pairs of gloves were found in the car during the search.

Mr. David Burd, criminologist in the laboratory of the California State Bureau of Criminal Identification and Investigation, an expert on markings left by tools, testified that it was his opinion that the drift punch tool found in appellants' car was the tool which had made the marks on the spindle which was removed from the bar safe during the burglary. He based this opinion on the fact that there was an 80% correspondence between lines left by the tool mark on the spindle and those made in tests with this tool, whereas marks made by two different tools ordinarily do not have more than 25% correspondence.

Appellant Jones and Wilkes testified that on January 25, 1954, they left Arkansas for California. They arrived in Truckee on January 29. Jones, at the time of his arrest, said that he and Wilkes had been in Arizona on January 30 and had come into California on Route 66. Again, Jones denied that he had been in California during the month of January. Wilkes stated that they had entered California via Route 66. Jones denied at the trial that appellants had ever stated that they had entered California via Route 66, or that they were not in California in January.

Appellants testified at the trial that they drove from Truckee to Sacramento, then went through Stockton and on to Bakersfield and Los Angeles. Wilkes did not remember, and Jones denied, that they drove through Oakland or its suburbs, although prior to the trial Wilkes told the police that they had driven from Truckee to Oakland and had stopped there, before going on to Los Angeles, and had also testified to this effect at the preliminary examination.

The purpose of appellants' trip to California was, according to their testimony, to find employment in construction work. They said they checked with union halls in cities through which they passed, but did not check on work in the Oakland—San Francisco area, but intended to stop at San Francisco on their way back from Los Angeles. They arrived in Los Angeles, they said, on the morning of January 30, a Saturday, and called the union but were unable to contact the business agent. They then rode around looking for construction jobs, but admitted that on Saturday there was usually no one on these jobs.

In the afternoon of January 30, appellants said that they went to a bar where later they met two women with whom they spent the evening at the bar, and the remainder of the night at their apartment. They knew only the women's first names, could not identify the location of the bar or the women's apartment. They said that at 6:00 a.m. on January 31, they left the apartment, and after a long distance call to Wilkes' wife in Texas, went to visit Wilkes' mother in Los Angeles at about 8 a.m., and remained at her apartment for about an hour and a half.

Appellant Wilkes' mother testified in support of her son's alibi as to the visit at her apartment. However, the owner of the apartment building testified that she did not move into the apartment at the address where the visit was supposed to have taken place until February 23, 1954. Wilkes' mother was also impeached by a showing that she had been convicted of a felony.

Later in the morning of January 31, at about 11:30, appellants checked into a motel in Bakersfield. Wilkes registered for them, using the name J. S. Wright.

Appellants concede that circumstantial evidence is sufficient to support a conviction for burglary, but contend that a study of the cases reveals that in no case where such a conviction has been upheld on appeal has there been as little evidence to connect defendants with the crime as in the present case. Since appellants admit that there is circumstantial evidence herein to connect defendants with the crime, although they discount its importance, they are really arguing the question of the weight of the evidence and the credibility of witnesses which are questions to be decided by the jury.

It is argued that appellants were arrested within two days after the burglary was discovered, and no large sums of money and no whiskey were found in their possession. It is not incredible that the loot could have been concealed or disposed of within 48 hours. Appellants stress the fact that they were arrested a great distance from the scene of the crime—the distance from Novato to Fresno—and the fact that they arrived in California only 24 to 30 hours before the crime was committed. It cannot be said that it is inherently incredible that they could have covered the distances involved in their 1953 model automobile. Again, it is said that the only link in the chain of circumstances which connects them with the town where the crime was committed is the box of washers which was identified by the hardware store owners as having come from the stock in his store sometime after the first of the year. They say it is uncontradicted that appellants were in California Friday evening, Saturday, Sunday and Monday, and that Sunday afternoon and evening were spent in Bakersfield. The jury could have believed that Sunday afternoon and evening were spent in Bakersfield, as testified to by the motel owner, and also disbelieved appellants' testimony concerning their whereabouts and activities on the preceding days.

The scientific evidence concerning the paint smears and chips found on the tire iron, which Jones first admitted was his, although he denied ownership at the trial, is very convincing. The colors and arrangement of the layers of paint on the tire iron were the same as those found on the floor near the safe. The markings made by the drift punch—a common burglary tool—corresponded to such a high degree with test markings made by the same tool, that the jury could reasonably infer that the markings on the spindle were not made by any other tool than that introduced as an exhibit in evidence by the People.

The alibi testimony evidently did not impress the jury, and this is not surprising, in view of the fact that appellant Wilkes' mother's testimony was contradicted by the landlord's testimony that she did not rent the apartment in Los Angeles where appellant's visit was supposed to have taken place till weeks after the date of the alleged visit. Furthermore her testimony was impeached by showing of a prior conviction of a felony, and that of her son, by more than one felony conviction.

In People v. Taylor, 4 Cal.2d 495, 50 P.2d 796, a burglary case, wherein the only evidence connecting defendant with the scene of the crime was an imprint of a rubber heel found on an invoice near the burglarized safe which appeared to have been made by a shoe belonging to defendant and found in his apartment, the conviction was upheld against the contention that the evidence was insufficient, even though the court stated that it was far from conclusive.

While it is true that possession of burglary tools shortly after the commission of a crime is not sufficient alone to prove defendant's guilt, when that factor is combined with other circumstances, such as were proved here, there is sufficient evidence. See People v. Godlewski, 22 Cal.2d 677, 685, 140 P.2d 381. In such cases the corroborating evidence need be but slight. People v. Parkinson, 138 Cal.App. 599, 609, 33 P.2d 18. Here the scientific evidence in regard to the paint and tool markings are extremely convincing. And the jury may well have believed the testimony as to the prior statements made by appellants rather than their later inconsistent statements made at the trial. The jury no doubt also believed the testimony which completely shattered appellants' alibi.

It is contended that appellants were deprived of a fair trial because prejudicial error was committed in the selection of the jury. A prospective juror Mrs. Worlund was challenged for cause because a deputy district attorney had once been her attorney. He had some months prior to the trial drawn a will for her. The challenge was denied, but appellants used one of their peremptory challenges to remove her from the jury. The judge pointed out that the number of prospective jurors remaining at that time was only seventeen. He ruled that the relationship in this case was not one that comes within Section 1074 of the Penal Code, since the relationship must be to the defendant or to the party injured or who would normally be the complaining witness. It is settled that this interpretation is correct. People v. Conte, 17 Cal.App. 771, 788, 122 P. 450, 457; People v. King, 30 Cal.App.2d 185, 85 P.2d 928. It is clear, therefore, that there is no ground for the claim of prejudice in this instance. Furthermore, the claim is completely unfounded, in view of the fact that appellants exercised a peremptory challenge to remove Mrs. Worlund from the jury.

Appellants claim that Mr. Pierce who served on the jury was not challenged for cause in view of the ruling of the court in regard to Mrs. Worlund, even though in his case an attorney-client relationship existed with the district attorney, although not with the deputy trying the case. Since appellants did not challenge the juror for cause, they undoubtedly waived any objection they might have had. People v. Young, 21 Cal.App.2d 423, 428, 69 P.2d 203. Furthermore, they used only nine of the twenty peremptory challenges allowed to them. In People v. Goldberg, 110 Cal.App.2d 17, 23, 242 P.2d 116, it is said that if an appellant complains that a challenge for cause was improperly denied, he must show as a condition precedent that he has exhausted his peremptory challenges.

It is urged that prejudicial error was committed by the district attorney's attempt to impeach appellant Wilkes by showing a prior misdemeanor conviction. It is settled that such impeachment is improper. People v. Hamilton, 33 Cal.2d 45, 198 P.2d 873. However, in the case herein appellant Wilkes was asked if he had ever been convicted of a felony. He replied: ‘Yes, quite a few, sir.’ The district attorney asked him to tell what felony he was convicted of. He answered that he had been convicted of burglary in 1947 for stealing 20 shotguns and that he was sentenced to the Texas State Penitentiary. The trial judge told him that he only needed to state ‘when and where and what was the charge.’ He was asked: ‘What was the second felony?’ and responded: ‘Forgery of a bill of sale.’ Then the district attorney asked: ‘What was the third felony?’ Wilkes answered: ‘I don't know if I was convicted of a felony that time or not.’ He was asked: ‘What crime was that, forgery.’ His counsel objected, and the objection was overruled. The district attorney then inquired: ‘Were there any others you were convicted of?’ and he replied: ‘Felonies? No, sir.’

It is obvious that appellant himself placed in doubt whether or not he had been convicted of a third felony. He himself gave the impression at the outset that he had been convicted of at least three felonies when he said that he had been convicted of ‘quite a few.’ In People v. O'Brand, 92 Cal.App.2d 752, 756, 207 P.2d 1083, it was contended that the district attorney must show that the conviction with which he attempted to impeach the defendant was a felony conviction by showing that defendant had in fact served a prison sentence. It was held in that case that the conviction of a crime designated a felony could be shown to impeach the accused without proving that he has been sentenced to the state prison.

Appellant suggests that it was known to the deputy and this trial judge that he had been tried in that very county and that the conviction was for a misdemeanor. There is nothing in the record to show that the conviction to which appellant was referring at this time was one that had taken place in that same court. Appellant had admitted to ‘quite a few’ felony convictions, and the district attorney had no way of knowing what might be forthcoming. Later in the trial this appellant, when asked if he had ever been in Marin County, said: ‘Yes, you convicted me of a felony here in Marin County, or a misdemeanor, I don't know.’ Since appellant volunteered this information, it is difficult to see how he can claim that any prejudice resulted from the question asked earlier by the district attorney.

Appellant Wilkes was asked over objection if he had not refused at his preliminary hearing to answer a specific question as to his whereabouts on a certain date. He complains that he was forced to explain his prior conviction for a violation of Penal Code, section 166. He was asked nothing at all about his conviction for this violation, but volunteered the information in explaining why he had refused to answer the question at the preliminary hearing. It would appear perfectly proper to impeach a defendant by showing that he refused to answer the same question at the preliminary examination that he answered freely at the trial. A witness may certainly be impeached by showing inconsistent statements made at the preliminary examination. People v. Adams, 137 Cal. 580, 70 P. 662; People v. Chrisman, 135 Cal. 282, 67 P. 136. This is in effect the same situation as that in the present case. Statements made before the grand jury which are inconsistent with those made at the time of trial are admissible for purposes of impeachment. People v. Kynette, 15 Cal.2d 731, 104 P.2d 794, and it has been held that refusal to testify before the grand jury may be shown for that same limited purpose at the trial. People v. Montgomery, 47 Cal.App.2d 1, 117 P.2d 437. Clearly, there was no error in allowing the prosecution to show appellant's refusal to answer the same question at the preliminary hearing.

It is argued that prejudicial error was committed by the court in failing to give an instruction warning the jury that evidence of prior inconsistent statements should be received with caution. Appellants have evidently overlooked some of the instructions given by the court. An instruction was given that evidence of the oral admission of a party ‘other than his own testimony in this trial, ought to be viewed by you with caution.’ Another instruction advised the jury that contradictory statements or evidence of possibly contradictory statements might be considered only for the purpose of possible impeachment of the witness.

Appellants complain generally of an instruction saying that ‘inherent in these statements is an assumption of the truth of the charges.’ In the instruction the trial judge cautioned the jury because he felt that the district attorney may have given them the impression that they could consider an alleged earlier admission of appellant Wilkes concerning prior burglaries, as evidence that he might have committed this one. The court gave a detailed and lucid instruction pointing out that this might be considered only for impeachment, and was not competent evidence to prove that appellant committed the crime with which he was now charged. This instruction was very fair to appellant, as were the instructions as a whole.

Finally, misconduct of the district attorney is charged, in that the district attorney discussed over objection the contempt citation and conviction as well as the failure of Mrs. Wilkes, wife of one appellant, to testify. The district attorney could properly comment on the evidence in the record concerning appellants' refusal on the preliminary examination to answer the question as to his whereabouts at a certain time. See People v. Planagan, 65 Cal.App.2d 371, 407, 150 P.2d 927; People v. Reznick, 75 Cal.App.2d 832, 841, 171 P.2d 952.

The court overruled appellant's objection that the reference to Mrs. Wilkes' failure to testify was prejudicial misconduct, stating that the question was not the right of the wife not to testify, but whether or not the best evidence had been brought out by the party to whom it was available. Counsel for appellants had discussed at some length evidence of the long distance phone call alleged to have been made by appellant Wilkes to his wife. Appellants cite generally People v. Klor, 32 Cal.2d 658, 197 P.2d 705; People v. Harmon, 89 Cal.App.2d 55, 200 P.2d 32; Thompson v. Hickman, 89 Cal.App.2d 356, 200 P.2d 893, and People v. McMahon, 116 Cal.App.2d 883, 254 P.2d 903, saying that a study of these cases will show that the rule is becoming crystallized in our law that such behavior as that noted above is misconduct. It is true that those cases indicate that such comment is considered misconduct, but not necessarily prejudicial error. Where, as here, the testimony of the wife concerns an essential element of the case, the failure to place her on the stand appears to be relevant. Here her testimony would be the best evidence available on a particular point therefore it would be proper for the state to comment on whether there was better evidence than offered, and thus a rebuttable presumption that it would be adverse to that actually offered. Code Civ.Proc. sec. 1963.

In People v. Klor, supra, a case where defendant was charged with assault with intent to commit murder, the prosecuting attorney repeatedly referred to the fact of the failure of defendant's wife to testify. He was admonished by the court and an instruction was given that neither side was obliged to call as witnesses all persons shown to be present or who might appear to have some knowledge. In view of the instruction and the fact that the evidence clearly established the guilt of defendant, the court held the misconduct did not warrant a reversal. In People v. Briggs, 20 Cal.2d 42, 123 P.2d 433, such misconduct was not considered reversible error where the court gave an instruction concerning the matter, although such instruction was not entirely accurate.

In the case of Thompson v. Hickman, 89 Cal.App.2d 356, 200 P.2d 893, the leading cases concerned with this subject were analyzed, although that case itself dealt with the incompetency of a plaintiff as a witness in a suit against the estate of a deceased person. It is there noted that in People v. Heacock, 10 Cal.App. 450, 102 P. 543, the court advised the district attorney on a retrial of the case to refrain from such comment, and in People v. Terramorse, 30 Cal.App. 267, 157 P. 1134, 1137, the court considered such comment prejudicial, but remarked that if the case had proceeded with ‘decorum and courtesy’ this one instance of misconduct might not have been sufficient to warrant a reversal.

The Heacock and Terramorse cases were decided prior to the 1935 amendment to section 1323 of the Penal Code, which allows counsel to comment on the failure of defendant to testify. When these cases were decided section 1323 provided that defendant's neglect or refusal to be a witness could not be used against him at the trial. The Heacock case in deciding that such comment should not be made, reasoned that since section 1323 prohibited comment on defendant's refusal to testify, such comment should not be permitted on his wife's refusal to testify, since under section 1322 she was incompetent as a witness without the husband's consent. See 8 Cal.Jur. 270, § 331. Since section 1323 now specifically permits comment on the defendant's refusal to testify, the reason supporting the Heacock and Terramorse cases would seem to have been removed.

However, the case of People v. Klor, supra, would indicate that such comment is still considered erroneous, but may be cured by instruction. In the present case the instructions as a whole were comprehensive and very fair to appellants, and an instruction was given cautioning the jury ‘to distinguish carefully between the facts testified to by the witnesses and the statements made by counsel, or contained in their arguments, as to what facts have been proven, and if there is a variance between the two, you must, in arriving at your verdict, consider only the facts testified to by the witnesses; and you are to remember that statements of counsel themselves are not evidence in the case.’

The jury having been fully and correctly instructed as to the weight to be given to counsel's argument, it does not appear that any prejudice could have resulted from the remarks of the prosecuting attorney concerning the failure of Mrs. Wilkes to testify. See People v. Amaya, 40 Cal.2d 70, 251 P.2d 324; People v. Sampsell, 34 Cal.2d 757, 764, 214 P.2d 813.

Judgment affirmed.

I dissent. This case is one which depends entirely upon circumstantial evidence. No witness by direct testimony placed the appellants in the vicinity of the crime and and no part of the stolen property was found in their possession. Appellants both testified that Wilkes telephoned to his wife, and that both talked to her, from Los Angeles at a time which would have made it impossible for them to be at the place of the burglary in Novato when it occurred. On oral argument the prosecuting attorney asked why Mrs. Wilkes had not been called as a witness to corroborate this telephone call. Counsel objected to this argument and asked that the court instruct the jury as to the right of a wife not to testify. The court not only failed to do this but instead commented: ‘The question is not her right not to testify, but whether or not the best evidence has been brought out by the party to whom it is available.’ (Emphasis mine.) The court then permitted the prosecuting attorney to continue: ‘Why didn't she take the stand and testify for him? Who would know better than she whether or not Oscar Leon Wilkes called from Los Angeles on the morning of January 31st? You didn't hear from her. * * * Where was Maxine Wilkes during these last four days. She wasn't on the stand.’

Following this the court instructed the jury, as a part of the formal instructions at the close of the case: ‘Another principle I think you should be instructed on is this: That evidence is to be estimated not only by its own intrinsic weight but also according to the evidence which is in the power of one side to produce * * * and if weaker or less satisfactory evidence is offered when it appears stronger and more satisfactory evidence was within the power of a party the evidence offered should be viewed with distrust.’

The jury was thus plainly told that it should distrust the evidence of both appellants that they talked to Mrs. Wilkes on the telephone because Mrs. Wilkes was not produced as a witness.

As late as People v. Klor, 32 Cal.2d 658, 663, 197 P.2d 705, 708, our Supreme Court has reiterated that: ‘It is the law that neither husband nor wife is a competent witness for or against the other in a criminal action * * * except with the consent of both.’ (Emphasis mine.) Since the wife must consent to be called, even as a witness for her husband, he cannot be charged with the failure to call her. The misconduct of the prosecuting attorney and the court in this instance is therefore too clear for argument.

The general instruction that the jury is to look to the evidence rather than to arguments of counsel did not cure this misconduct. There was in this case no such instruction as in People v. Klor, supra, that ‘neither the prosecution nor the defense is required to call as its own witnesses all persons * * *.’ 32 Cal.2d at page 664, 197 P.2d at page 708. Quite the opposite as the instructions above quoted show, the jury was in effect instructed that it should view the appellants' evidence on this point with distrust because Mrs. Wilkes was not called as a witness. This was an instruction on how the jury should weigh the evidence and no general instruction that the jury should look to the evidence rather than to counsel's arguments could ameliorate it.

On this case depending solely on circumstantial evidence for a conviction the prejudice of this misconduct to appellants is so clear to me that I believe the judgment should be reversed.

KAUFMAN, Justice.

NOURSE, P. J., concurs.

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