PEOPLE v. KOENIG (1945)

It was charged in an information that appellant Richter, Donald Koenig and Ralph Hagenios committed robbery, a felony, in two counts, and that they were armed with a revolver at the time of the commission thereof. It was also charged that Koenig had been convicted of two felonies previously. Hagenios pleaded guilty. Appellant and Koenig pleaded not guilty. Koenig admitted the charge of previous convictions. Trial was by jury, and they were found guilty as charged. They have appealed from the judgment of conviction and the order denying their motions for a new trial. Koenig failed to perfect his appeal, and the same was dismissed.

Appellant Richter contends that the evidence was insufficient to support the judgment of conviction; that the ‘use of Koenig's statement against Richter was error’; that it was error to admit evidence relative to funds in appellant's possession at the time of his arrest in the absence of evidence that he was impecunious prior to the crime; and that the jury was not properly instructed.

Appellant had been employed by the Veterans Administration, apparently as a cook, for a period of more than 8 years, and at the time he left such employment at Sawtelle, on May 4, 1944, he was chief cook. Hagenios also had been employed by the Veterans Administration at Sawtelle prior to the robbery, and had worked there under appellant's supervision. Hagenios introduced appellant to Koenig. Koenig had stolen a .38 caliber revolver from a company where he had been employed, and he had left the gun in the possession of Hagenios. Appellant was married and his wife was away on a vacation at the time of the commission of the offenses herein. About May 5, 1944, appellant and Hagenios went to San Francisco together and remained there about 2 weeks, returning to Los Angeles on May 19th or 20th. Upon their return they rented a room in a hotel at Ocean Park, and one of them registered for both, using fictitious names. About 12:07 a. m., Sunday, May 21, 1944, Hagenios entered a cafe which was on the north side of Pico Boulevard, near Santa Monica, and was known as ‘Hamburger Frank's.’ He asked the cashier to cash a check, and the cashier directed him to an office in the rear of the cafe where the owner kept money to cash checks. Hagenios, armed with said stolen revolver, went to the rear office, where the owner was then cashing a check for a defense worker. After the owner had placed $64.13, the amount of the check, on the counter in front of the defense worker, Hagenios, with the gun in his hand, said, ‘I will take the rest of it.’ The owner handed his money to Hagenios, and Hagenios also took the $64.13 which had been placed on the counter for the defense worker. Hagenios then started toward the front of the cafe, and the owner shouted, ‘Grab that man, it is a hold-up,’ whereupon Hagenios turned and fired a shot which went over the owner's head and lodged in the rear wall of the cafe. Hagenios then ran out of the cafe and entered an automobile, which was standing at the north curb of Pico Boulevard about 25 feet from the cafe, and which immediately moved away. In the afternoon of that day (Sunday) Koenig went to the hotel room which had been rented by appellant and Hagenios, and when he left there on that same day took with him the gun which Hagenios had used in the robbery. About 10 o'clock that night Koenig was arrested by police officers while he was attempting to hide the gun in a box in an alley at Santa Monica. The gun had been listed with the police department as stolen and was unloaded at the time of Koenig's arrest. About 9 a. m., the next day, five police officers went to the hotel in Ocean Park, and found appellant and Hagenios in the room which they had rented, and also found there forty-nine .38 caliber cartridges and a cartridge box which originally held fifty such cartridges. At that time Hagenios had $233, consisting of currency in one, five and ten-dollar denominations, and appellant had $276. Appellant had sold his automobile on May 2, 1944, to a dealer for $235, and had borrowed $100 from a finance company on May 3, 1944. The owner of the cafe had been cashing checks for 10 years, and appellant had lived next door to him for 6 months about 2 years prior to the robbery.

The cashier, who was in the front part of the cafe, testified that after the robbery she saw Hagenios get into the automobile ‘from the sidewalk [right-hand] side’; that he was on the right-hand side when it went away; that she did not see anyone else in the automobile, but Hagenios ‘didn't hardly have time to get his feet in before it started’; that Hagenios opened the door to the automobile ‘and put one foot into the car and the car drove off’; that ‘it was dark,’ but it ‘was quite light around the restaurant’; that ‘they have several lights on’ and ‘the whole front of the cafe is windows'; that there were no street lights immediately in front of the place where the automobile was parked; that she did not go outside; and that she got the license number of the automobile.

The owner of the cafe testified that Hagenios took $1915, which amount included the $64.13 he had placed on the counter for the defense worker; that $1500 of said amount consisted of ten-dollar bills, and the balance consisted of one and five-dollar bills; that he was acquainted with appellant only well enough to say ‘hello’; that he had not seen him during the 2 years preceding the date of the offense herein; that he thought he had been him in his cafe ‘about a year ago’; and that he had not seen him in his cafe during the past year.

Police officer Subers testified that he was one of the arresting officers; that when they found the cartridges in the room Hagenios told them they were his; that appellant denied any knowledge of the crime; that the money which they took from appellant also consisted of one, five, and ten-dollar bills; that appellant told him that the money was his—that he had sold his automobile for $235, borrowed $100, and won $90 ‘on the horses' while he was in San Francisco; that Koenig told him he had known appellant about 2 months; that appellant told him he had known Koenig ‘a short while, probably a month or two’; that on the evening of May 23rd, appellant and Hagenios were taken to a police ‘show up,’ after which they were returned to the West Los Angeles jail where he (the witness) had a conversation with Hagenios and appellant; that police officer Ward was present during part of the conversation, and police officer King was present during part of the conversation including all the last part; that he (the witness) told Hagenios and appellant he had a good case against them and asked them if they wanted to plead guilty; that he told them he expected them ‘to cooperate’ with him, and ‘get back the rest of the money’ that was missing, and that they ‘both spoke up’ and said, ‘that was all the money they got with the exception of a few dollars they might have spent’; that Hagenios denied getting ‘any more money from there, and the defendant Richter stated that was all they had gotten’; that the amount they named was $750 to $780; that appellant said it was ‘$780 to be exact’; that appellant said he had given ‘Koenig $120 as his share of the Hamburger Frank's job,’ and Hagenios said he had given Koenig $100 as ‘his share’; that appellant said ‘they [he and Hagenios] picked’ the automobile up on the night of the robbery ‘at a drive-in place at Wilshire and Santa Monica Boulevard’; that appellant said he drove the automobile and abandoned it, after the robbery, one block east of the St. John's Hospital in Santa Monica; that the witness asked appellant if the automobile was a LaSalle coupe and appellant stated he did not know what kind of automobile it was; and that they (the officers) did not ask appellant to make a written statement. He testified further that Hagenios and appellant had occupied separate cells prior to May 23rd, but on the night of May 23rd they were placed in a call together, and then he (the witness) and officer King brought Koenig from his cell to the cell occupied by appellant and Hagenios where a further conversation was had; that appellant, Hagenios, Koenig, King and the witness were present during said conversation; that the witness said, ‘Koenig, are you sure you got $220, you said it was just a loan,’ and that appellant ‘spoke up and said, ‘I gave you [referring to Koenig] $120.00 and it wasn't a loan’'; that Hagenios said, “and I gave you [referring to Koenig] $100, and don't try to lie out of it”; and that Koenig then said he had furnished the gun and received $220 as his share.

Police officer King testified that he participated in the conversation on May 23rd, at which time appellant, Hagenios and Koenig were present; that the witness did not make notes, but officer Subers did make notes; that he (King) left before the ‘conference was over,’ but he was there most of the time—5 or 10 minutes; that he did not remember that officer Ward was present; that he and Subers took Koenig from his cell to the one occupied by appellant and Hagenios; that they took Koenig inside the cell, and told the three defendants they ‘wanted to find out more of the details'; that he questioned Richter, and Subers asked Koenig a few questions; that the witness did not remember anything in particular that Koenig said; that he (the witness) asked Koenig to tell about the robbery, and Hagenios ‘spoke up’ and said appellant drove the car, and all three of them were involved; that appellant denied knowing anything about the robbery; that Hagenios called appellant a ‘fink’ and said, “You are into this as well as we are, and we are not going to take the rap for this alone,” and that appellant said he drove the car; that appellant then told him ‘they’ stole the automobile at a drive-in stand on Santa Monica Boulevard in Santa Monica; that he said it was a green convertible coupe, and that it was abondoned in Santa Monica about a block east of St. John's Hospital; that appellant said he knew when he drove the automobile it was ‘for the purpose of robbery, that the three of them had planned it, that he knew that the money which he had received was the proceeds from the robbery’; that he did not recall any conversation about appellant having given Koenig money; that he and Subers were the only ones who asked any questions; that he did not question Hagenios ‘particularly,’ and he did not recall that Subers questioned him; that during this conversation the door to the cell was left open, the three defendants were standing, and the witness stepped into the cell; that before Koenig was taken away the witness left to telephone the Santa Monica police and ‘have them go over and find the car.’

Police officer Barham testified that on May 23rd, he received instructions to look for an automobile one block east of St. John's Hospital; that he and his partner went there and found a 1937 LaSalle green convertible coupe which was on their list of stolen cars.

Another witness, called by the People, testified that she had been employed by the Veterans Administration; that she had known appellant for a period of 4 or 5 months when she worked there as a waitress; that she ‘just knew him as a co-worker,’ and the ‘only time’ she ever saw him ‘was at the Home’; that she had known Hagenios almost 4 years, and had lived with him prior to his trip to San Francisco, but left him and ‘went home’ the ‘first part of May’; that she met Koenig in March, 1944, and after that saw him on numerous occasions, and she saw him and Hagenios together ‘many times'; that Koenig brought a revolver to the place where she and Hagenios were living and ‘wanted to leave it’; that it appeared to be the same gun which was exhibited to her at the trial; that she asked him not to leave it because it might involve Hagenios ‘if anything happened,’ and he did not leave it; that subsequently Koenig brought the gun to the room several times; and that the last time she saw it was the day before she left Hagenios, and at that time it was on the table.

Koenig testified that he had stolen the gun; that ‘around the first of April’ he went with Hagenios to the latter's room and left the gun there; that he had known Hagenios about 9 years; that on May 21st he went to the hotel room occupied by appellant and Hagenios; that after he ‘had been there five or ten minutes' appellant went out of the room, and then Hagenios told Koenig about the robbery; that he (Koenig) took the gun because he was afraid it ‘would be traced’ to him ‘since it had some connection with the robbery,’ and he did not want to be involved; that Hagenios paid him $200 which he had owed to him about two months; that he paid it to him before he told him of the robbery, and he (Koenig) did not know the money he received was stolen money; that appellant did not give him any money and he did not tell the police that appellant had given him money; that on the night of May 23rd, officer King did not come to his cell, but Subers came and took him from his cell to the one occupied by appellant and Hagenios; that he (Koenig) did not enter the cell; that he was certain King was not present at the meeting before the cell; that during the conversation before the cell appellant did not say he gave Koenig $120; that he did not remember much of what was said, but ‘the officer was claiming’ that he (Koenig) had received money from the robbery; that he did not remember anything that appellant or Hagenios said and he did not know that they said anything in his presence; that he ‘would not say’ he was fully awake at the time; that he had known appellant about a month before the robbery; that he had seen appellant one time prior to the robbery which was when he met him about the first of May; that the written statement, signed by him, and received in evidence, was not a correct statement of the questions asked him and the answers given by him at the time the statement was made; that he signed the statement, but he did not read it; that the portions of it implicating appellant in the robbery were not answered by him that way; and that the questions may have been asked, but he did not think he gave answers like that because they would implicate appellant.

The proprietor of the hotel where appellant and Hagenios rented the room testified that she was not sure which one of them registered for the room, but she thought it was Hagenios; and that she did not think appellant put the two names on the register.

Appellant testified that he left the Veterans Administration on May 4, 1944, but he was on the pay-roll until May 15th; that he had known Hagenios about 4 months before they went to San Francisco together; that he (appellant) had approximately $500, consisting of the $235 received from the sale of his automobile, the $100 loan, a pay check for $89.54, $75 savings, and the amount he received when he cashed a $50 bond; that he did not register at the hotel; that he did not see Hagenios register; that he first met Koenig the day before he went to San Francisco, and the next time he saw him was when Koenig came to the hotel room on Sunday, May 21st; that on Saturday night (May 20th) appellant left the hotel room about 8:30 p. m. to look for an apartment in Santa Monica; that he asked Hagenios if he wanted to go with him and Hagenios said, ‘No,’ and that he was going to see his girl friend; that he (appellant) returned to the room ‘a little after 12:00’ and Hagenios was there; that when Koenig came to the room on Sunday, he (appellant) said, ‘Hello, Don,’ and then said he was ‘going out to dinner’ and asked if Koenig and Hagenios wanted ‘to go along,’ but they said, ‘No,’ and then appellant left alone; that he was in the room about 5 minutes after Koenig came; that he did not see Hagenios give Koenig any money; that he (appellant) did not give Koenig any money; that he saw the cartridges in the room after the officers found them; that the first he knew of the robbery was after he had been arrested and was at the police station; that the police took about $275 from him, consisting ‘mostly’ of ten-dollar bills; that he told the officers he ‘made a couple of bets on the horses' in San Francisco and won approximately $70; that he was never in Hamburger Frank's, and had no knowledge of the owner cashing checks; that when he and Hagenios were returned from the police ‘show up,’ he was taken in the booking office where Subers told him if he did not want to plead guilty, he (Subers) would convict him ‘on some one else's testimony’; that when they brought Koenig to the cell occupied by appellant and Hagenios, Koenig stood ‘right outside of the cell,’ with the officers; that Subers was the only officer present when Koenig was brought to the cell; that the first time he saw King was when King testified; that he thought the name of one of the arresting officers was ‘King,’ but he was not the same man who testified at the trial; that he (appellant) was lying on the top bunk reading a magazine, and all the conversation he heard was something Subers said to Hagenios ‘in regard to a gun’; that he did not say at any time that he had had any part in the robbery; that he did not say that he drove or abandoned the automobile; and that Subers asked him if he drove the LaSalle, and he said ‘No.’

The commissary officer of the Veterans Administration testified that he had known appellant approximately 10 years, and that his reputation for truth and honesty was good.

A steward for the Veterans Administration testified that appellant's reputation for truth and honesty was good.

The automobile dealer who purchased appellant's automobile testified that he had known appellant about 15 months, and that he had investigated appellant's reputation (the record does not show in what respect) and found it to be good.

Under appellant's contention that the evidence was insufficient to support the judgment, he argues that the evidence as to him was circumstantial, that no one testified he saw appellant at or near the scene of the crime, that his acquaintance with Hagenios and Koenig was not sufficient to raise an inference of guilt, and that evidence of possession of funds was no evidence of guilt. The evidence herein shows more than mere acquaintance with Hagenios and more than mere possession of funds. Appellant had lived next door to the owner of the cafe, a victim of the robbery. Hagenios actually committed the robbery by displaying and firing a revolver. Appellant and Hagenios had spent 2 weeks together in San Francisco just prior to the commission of the robbery and were rooming together, under fictitious names, at the time the robbery was committed. When the officers entered their room appellant was there with the actual robber, Hagenios. When Hagenios left the cafe, after committing the robbery, and entered the waiting automobile, it was driven away immediately. According to the police officers' testimony, appellant said that he and Hagenios had stolen the automobile that was used, that appellant had driven it from the cafe at the time of the robbery, that after the robbery he had abandoned it at a certain place, and that he had given Koenig $120 as his share of the money from the robbery. Koenig had stolen the gun that was used in the robbery, and had been in the room of appellant and Hagenios with them just prior to the time Koenig was arrested while trying to hide the gun in an alley. The automobile was found by the police officers in the place where appellant said he had abandoned it. The total amount of money taken by the officers from appellant, Hagenios and Koenig was $729—being $276 from appellant, $233 from Hagenios, and $220 from Koenig ($200 of the Koenig money had been left by him with a bartender just before he tried to hide the gun). When an officer told Hagenios that he expected him to cooperate in recovering the balance of $1915 which had been stolen, appellant said, according to the testimony of the police officer, the amount the officers had was all that ‘they had gotten,’ and that it was ‘$780 to be exact.’ It appears that each of the defendants had approximately the same amount of money, and that the amount each one had was approximately one-third of $729. The mere fact that appellant had money in his possession would not be a significant circumstance, but when the possession of money is considered in connection with the other evidence as to giving Koenig money and as to each defendant having approximately the same amount of money, it is a material circumstance to be considered in determining whether the three defendants divided among themselves the money obtained in the robbery. It was the theory of the prosecution that the robbery was the result of a conspiracy. The jury was instructed on the law of conspiracy. In People v. Ross, 46 Cal.App.2d 385, at page 396, 116 P.2d 81, at page 87, the court said: ‘[A]cts performed subsequent to a theft, which is the object of a conspiracy, in compliance with a promise to pay an accessory a specified sum for his participation in the crime, are also competent as tending to prove the conspiracy.’ It was not error, under the circumstances here, to receive the evidence as to the possession of receive by the appellant. Appellant asserts that the testimony of officer Subers was highly improbable and concocted, and that the testimony of the officers was conflicting. In the argument in support of such assertion appellant refers to several parts of the testimony which relate to such matters as which officers were present at certain conversations, and where the officers and defendants stood at certain times. In People v. Headlee, 18 Cal.2d 266, at page 267, 115 P.2d 427, the court said: ‘To be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed. The improbability must be apparent; evidence which is unusual or inconsistent is not necessarily improbable.’ The evidence was sufficient legally to support the judgment of conviction.

Koenig, as above indicated, had signed a written statement which implicated appellant. Appellant contends that Koenig's written statement was received in evidence without limiting its consideration to Koenig, and that the failure to so limit the use of the statement was error. Before reference was made to the written statement, and when officer Subers was about to relate a conversation he had had with Koenig, the court upon the suggestion of counsel for appellant, instructed the jury that it could consider the conversation as affecting the defendant Koenig only and not as affecting appellant. When that officer was asked if Koenig had signed a certain written statement and the officer had replied that he had signed it, the document was marked ‘People's Exhibit No. 4’ for identification. Then the written document was offered in evidence, and counsel for Koenig objected to the offer upon the ground that it was not shown that the purported confession was voluntary. After further testimony by the officer concerning the circumstances under which the document was signed, the court overruled the objection but did not state expressly that the document would be received in evidence. The document was then read to the jury. At the time the statement was read, counsel for appellant did not request that the jury be instructed that the statement should be considered as applying to Koenig only; however, said counsel's failure to request such an instruction at that time should not be considered as a waiver by her of an objection to the document insofar as appellant was concerned, for the reason she had previously moved to strike out a conversation had between the officer and Koenig, and the trial judge had said: ‘The court has limited this conversation as to the other defendant [referring to appellant], and you are protected fully, Mrs. Kellogg.’ At the close of the People's case, the written statement of Koenig was offered in evidence as People's Exhibit No. 4 as against Koenig only, and it was received. When the court gave its instructions to the jury it included the following: ‘Any statement you may find to have been made by any defendant after the commission of a crime, if you find a crime to have been committed, may be considered by you as evidence affecting, if it does affect, only the defendant who may have made such statement and not as affecting any other defendant.’ In order to have more clearly advised the jury that the written statement of Koenig would not apply to appellant, the trial judge should have told the jury at the time the written statement of Koenig was read to the jury that it should be considered as applying to Koenig only; however, his failure to so advise the jury at that time was not prejudicial error under the circumstances hereinabove referred to.

Appellant asserts further that the court did not properly instruct the jury as to the nature and evidentiary effect of circumstantial evidence. The court instructed the jury that: ‘If the evidence in this case, as to any particular count, is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of a defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of such defendant's innocence, and reject that which points to his guilt.’ Appellant argues that under the authority of People v. Rayol, 65 Cal.App.2d 462, 150 P.2d 812, the giving of said instruction was insufficient. In that case the evidence was wholly circumstantial. In the present case the evidence was not wholly circumstantial. As above stated, there was evidence of admissions by appellant that he drove the automobile in taking Hagenios away from the scene of the robbery, that he had abandoned the automobile which had been so used, and that he had given Koenig part of the money obtained in the robbery. The instructions as to circumstantial evidence were sufficient.

By reason of the above conclusions it is not necessary to discuss appellant's other contentions relative to instructions.

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

I dissent. The evidence against the appellant consisted of (1) his association with his codefendants; (2) testimony as to alleged admissions made by him to police officers, and (3) his possession of $276 in currency at the time of his arrest.

The jury, in my opinion, was not adequately instructed. The court refused a requested instruction to the effect that a conviction could not be had upon circumstantial evidence unless it was of such a nature as to be inconsistent with any reasonable theory of innocence. No instruction was given which stated this principle of law. The ones that were given were the same as those considered in People v. Hatchett, 1944, 63 Cal.App.2d 144, 146 P.2d 469, and People v. Rayol, 1945, 65 Cal.App.2d 462, 150 P.2d 812, and which were held insufficient as a statement of the rule of circumstantial evidence. The holding of the main opinion is to the effect that it is not necessary to instruct on circumstantial evidence if in addition to such evidence there is also evidence of admissions by the defendant tending to connect him with the commission of the crime. With this I do not agree. The evidence in the Hatchett and Rayol cases was direct as well as circumstantial. In the Hatchett case a witness, Essie Dempsey, had testified that she held a telephone conversation with the defendant, in which the defendant threatened the killing, that she heard the shooting and immediately thereafter heard the victim groan. In the Rayol case there was direct evidence of police officers who witnessed the act charged, but the evidence as to whether the defendant was sufficiently sober to have knowingly participated therein was circumstantial. In both cases we held that it was prejudicial error to refuse to state the rule of circumstantial evidence which the appellant here sought to have given. It is true that the jury could have believed the testimony of the police officers and could have rested the verdict upon appellant's admissions as well as upon the circumstantial evidence. But the jury might well have disbelieved the testimony of the officers as to appellant's oral admissions. Nothing would then have remained except appellant's suspicious association with his codefendants and his possession of money. His account as to how he happened to have the money was wholly reasonable and well corroborated. His association with his codefendants, so far as disclosed by the evidence, and standing alone, was no more indicative of guilt than it was of innocence. The circumstantial evidence in his favor was that he was a man who had led an upright life and bore a good reputation, and it was not shown that he was in need of money. The appellant had the right to have the jury instructed in the law of circumstantial evidence, on the theory that the testimony as to his oral admissions might be disbelieved, leaving the case entirely one of circumstantial evidence. We stated in the Hatchett case, 63 Cal.App.2d at page 153, 146 P.2d at page 473: ‘The point to which our discussion of this proposed instruction will be directed is that the defendant had a right to an instruction on circumstantial evidence based upon her own theory of the case, which would include the hypothesis that the jury would disbelieve the testimony of Essie Dempsey, leaving the People's case purely one of circumstantial evidence.’ The testimony of the officers as to appellant's admissions was contradictory in many particulars. The jury should not have been instructed solely upon the theory that that testimony would be believed, for it might well have been disbelieved. The trial court could not know to what extent guilt, if adjudged, would be rested upon the circumstantial evidence. We, of course, do not know whether the testimony of the officers was believed, but if it was not believed there was nothing in the circumstantial evidence which approached convincing evidence of guilt.

The instruction on circumstantial evidence which is in question here need not be given in every case where the evidence of guilt is partly circumstantial. The direct evidence may be so strong as to render the circumstantial evidence a negligible factor. But the refusal to give the instruction cannot be justified upon the sole ground that there is some direct evidence of guilt. Whether the failure to give it deprives the defendant of a fair trial depends upon the evidence in the particular case. There can be no more definite rule on the subject than this: in fairness to the defendant should the instruction be given? Certainly it should have been given in appellant's case, and it should be given in every case where, in addition to inconclusive circumstantial evidence of guilt, there is nothing but testimony of police officers, denied by the defendant, as to oral admissions of the defendant alleged to have been made to the officers while the defendant was under arrest and in jail.

I notice that no instruction was given that the oral admissions of the defendant should be viewed with caution, as required by section 2061 of the Code of Civil Procedure, subdivision 4. The code declares that such an instruction should be given on all proper occasions. The legislature has, in effect, declared that there are proper occasions and, in my opinion, it is perfectly clear that this is one of them. The earlier decisions holding subdivision 4 of section 2061 to be unconstitutional were overruled in People v. Dail, 1943, 22 Cal.2d 642, 140 P.2d 828. Some of the earlier cases held that it was not prejudicial error to instruct or to refuse to instruct in the language of subdivision 4 because the principles therein stated are commonplaces known to all jurors. The legislature did not think they were known to all jurors and the legislators have a better right than judges have to speak in such matters. In the course of a somewhat extended experience with court proceedings I have encountered no overwhelming evidence that all judges and jurors view with caution the testimony of police officers with respect to the admissions of persons accused of crime. Whether the weight of the evidence may be to the contrary is beside the point. But I am satisfied that the courts should not set themselves above the legislature with respect to the giving of instructions as to the oral admissions of a party.

The principles of law most vital to appellant's case were those pertaining to the weighing of the circumstantial evidence and the testimony as to his alleged oral admissions. The jury was not adequately instructed as to the first, and was not instructed at all as to the second. The case of the People was not so strong as to render it improbable that appellant would not have been convicted if the jury had been properly instructed upon the legal principles which were most vital to the defense.

The judgment and order denying motion for new trial should be reversed.

On Petition for Rehearing.

The petition of appellant, William Richter, for rehearing is hereby granted.

I dissent from the order granting defendant's petition for a rehearing. The petition for a rehearing should not be granted upon the ground, asserted in effect in the petition for a rehearing, that an admission of guilt by defendant of actually participating in robbery with firearms is circumstantial evidence. Counsel for defendant has cited 8 California cases in support of her said assertion. Five of those cases involve charges of perjury, and are not in point—in 4 of those cases the matter of admissions was not mentioned—and in one of them the court said, ‘as to whether or not a confession of the defendant would be sufficient evidence to stand in lieu of the testimony of the one witness, we are not called upon to decide.’ One of those cases was an action to recover on a fire insurance policy, the question being as to what was the cause of the fire—that case is of no value here. One of those cases was an action to recover damages for the loss of a hand while working with oil well tools—that case is of no value here. One of those cases, decided in 1882, involved a charge of larceny, and the trial court gave an instruction defining the kinds of evidence, and stated that circumstantial evidence ‘may consist of admissions by defendant,’ and the instruction was held to be correct—no admission was involved in the case, and of course the instruction did not indicate whether such evidence which ‘may consist of admissions,’ as referred to therein, was an admission of a collateral or incidental fact or was an admission of the actual commission of a crime, as is the case here.

In 22 Corpus Juris Secundum, Criminal Law, pages 1243, 1245, § 730, it is said that statements by the accused from which an inference of guilt may be drawn ‘are original or direct evidence.’ In 20 American Jurisprudence, page 460, section 544, it is said that the admissions of a party ‘are received as original evidence.’

In Mitchell v. People, 1924, 76 Colo. 346, 232 P. 685, 687, 40 A.L.R. 566, defendant was convicted of first degree murder, and the question on appeal was whether a confession was circumstantial evidence within the provisions of a statute forbidding the infliction of the death penalty on circumstantial evidence. The court therein said, ‘confessions, oral as well as written, are direct evidence.’

In Ossendorf v. United States, 7 Cir., 1921, 272 F. 257, it was held that damaging admissions by the accused did away with the necessity of giving instructions on circumstantial evidence, for the reason that the government's case did not then rest wholly on circumstantial evidence.

In an annotation in 40 A.L.R. at page 571, it is said: ‘The question whether a confession is circumstantial evidence appears to have arisen mainly in cases dealing with the necessity of instructing the jury as to circumstantial evidence. It is held that, for the purpose of an instruction on circumstantial evidence, testimony of a confession is direct evidence and not circumstantial, and that it is, therefore, not error to refuse to charge the jury on circumstantial evidence in such a case.’ That statement is supported by numerous decisions of numerous jurisdictions, including Alabama, Georgia, Illinois, Kansas, Missouri, Oklahoma, Tennessee, and Texas. Some other jurisdictions which follow that rule are Pennsylvania and Indiana. In the annotation, above referred to, it is said that in a few cases a distinction is made between confessions and incriminating admissions, and it cites Hart v. State, 1914, 14 Ga.App. 714, 82 S.E. 164, 165, wherein the court said: ‘Confessions may be direct or circumstantial evidence. If they be of facts directly admitting the commission of the crime, they are direct evidence; but if the fact or facts confessed be only matter from which inference of participation arises, they are circumstantial evidence.’

In Evans v. State, 1927, 199 Ind. 55, 155 N.E. 203, at page 206, it is said, ‘The confession of appellant was direct evidence.’ It was also said in that case on the same page that: ‘In Underhill, Criminal Evidence (3d Ed.) § 4, it is said: ‘Direct evidence of the crime is the evidence of an eye-witness that it was committed. This includes in criminal law the confession and admissions of the accused.’'

In Long v. State, Okl.Cr.App.1943, 140 P.2d 600, at pages 604, 605, it is said: ‘It is equally well settled that where the prosecution do not rely wholly upon circumstantial evidence for a conviction, the accused is not, as a matter of right, entitled to have the jury instructed upon the law of circumstantial evidence. * * * In this case the facts are all circumstantial unless the admissions of the defendant are such as would constitute direct evidence. The testimony of the officers is to the effect that the defendant told them the car belonged to him, that he had been driving it at the time the wreck occurred, that he was going about fifty miles an hour and had fallen asleep. These statements of defendant are direct admissions of guilt.’

The reference to ‘wholly circumstantial evidence’ in the opinion on file herein was made for the purpose of distinguishing the case of People v. Rayol, 65 Cal.App.2d 462, 150 P.2d 812, upon which appellant relied, from the present case. The distinction could have been pointed out more simply by stating that there was no admission in the Rayol case and there were admissions herein of actual participation in the robbery. Irrespective of the academic question as to how the evidence of admissions herein should be classified, the distinction between the two cases—that there was no admission in the Rayol case and there were admissions in this case—is sufficient to show that the rule in the Rayol case was not applicable herein. The question herein was whether the jury was adequately instructed as to circumstantial evidence. As stated in the opinion on file herein, the instructions on that subject were sufficient.

The petition for a rehearing should be denied.

PARKER WOOD, Justice.

DESMOND, P. J., concurs.