Skip to main content


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


Cr. 2318.

Decided: July 07, 1945

Vernon Williams, in pro. per. Robert W. Kenny, Atty. Gen., and Ralph W. Scott, Deputy Atty. Gen., for respondent.

Defendant was found guilty by a jury of burglary in the second degree. He appeals, in propria persona, from the judgment of conviction and from the order denying his motion for a new trial. In addition to contending that the evidence is insufficient as a matter of law, he urges that there is a fatal variance between the information and the proof as to the exact location of the butcher shop he is charged with burglarizing, and that prejudicial error was committed in the rulings on the admissibility of evidence.

This is the second trial of defendant. On the first trial the jury disagreed. The facts as disclosed by the present record are as follows: Giacomi Tassi and William Fey operate a butcher shop on 16th Street, near Delores Street, in San Francisco. Tassi testified that this shop was located at 3297–16th Street. Fey, on the other hand, testified that the shop was located at 3299–16th Street. The information charges a burglarious entry at 3299–16th Street.

On the evening of November 23, 1943, just before Thanksgiving, Tassi and Fey closed their shop and locked the doors about 6 p.m. At that time they had an uncertain number of turkeys in their shop. These belonged to various customers who had brought them to the shop to be cleaned. Neither partner was sure of the exact number of turkeys in their possession, their estimates ranging from a dozen to eighteen or twenty. Neither partner was sure that all of the turkeys were tagged or marked. When the partners arrived to open shop on the morning of November 24th they found that the door to an adjoining place of business, and the door to their shop had been forced open and that the large plate glass window on the door to their shop had been smashed. The lock on the door was broken and the floor of the shop was convered with turkeys and papers. Both partners positively testified that four of the turkeys were missing. Just how they knew this when they did not know the number of turkeys they had in the first place is not clear from the evidence.

Officer Loftus of the San Francisco Police Department testified that he was on duty in the Mission District during the early morning hours of November 24th. On 24th Street, near South Van Ness Avenue, some eight blocks from the butcher shop, he noticed a Ford panel delivery truck. In the body of the truck he saw some large bags with turkey legs protruding. This was at about 1:15 a.m. He watched the truck from a nearby doorway, and after a short period observed two men come out of a barber shop and start to enter the truck. One of the men was admittedly the defendant. The other was one De Mato. According to the officer the defendant was just getting behind the wheel of the truck when he arrived and asked the two men for some identification. Defendant produced his draft card. He then asked defendant if he was going to take the truck. The defendant answered that he was not because the truck did not belong to him. When asked why he had climbed into the truck he replied that he had no reason as the truck was not his. The officer decided to arrest the men and took them to a police call box on the corner of 24th and Mission Streets. According to his testimony, while he was telephoning, both men ran away, in different directions. The officer pursued De Mato, chasing him for several blocks and finally shooting at him. He wounded De Mato and after seeing him removed in an ambulance, he returned to the barber shop where he secured a turkey from the proprietor. He put this turkey in the truck with the others. He was not sure how many turkeys were then in the truck. At one of the hearings he had testified there were four or five. Admittedly three turkeys were taken to the police station and ultimately returned to Tassi and Fey. Both Tassi and Fey testified that the three turkeys returned to them by the police had been stolen from their store. Tassi testified he could identify turkeys by just looking at them. He also testified that one of the turkeys had a tag; that that turkey belonged to a lady by the name of White; that the tag was from the California Poultry Company and had the salesman's name—Al—written on it. The tag was introduced into evidence. The other turkeys were untagged. Fey's testimony on the point was somewhat more confusing. He testified that one turkey was tagged with a California Poultry Company tag and that the other two were not tagged. On the first trial he had testified they all had tags but admitted on this trial that this was not so, but implied that the owners' names were on the bags. He also testified that all the turkeys had tags and that he turned these tags over to the police. The other two tags were never produced.

Inspector McCannof the San Francisco Police Department testified that defendant was apprehended in a Market Street theater by him and several officers on December 1, 1943. He testified that he saw the defendant on the stairway leading to the balcony; that when defendant saw McCann he turned and ran; that he chased defendant; that defendant tried to get out of a balcony fire door, but when the door failed to open he was apprehended. He further testified that he questioned defendant in the lobby of the theater and later at the Hall of Justice. The officer's testimony is to the effect that during such questionsing defendant denied he could drive a car but that he had a driver's license in his own name which the officer saw and returned to him; that defendant denied that he had stolen the turkeys; that defendant stated that he had met De Mato in a pool room; that De Mato had asked him to borrow the truck; that he decided to drive the truck because it had bad brakes; that he (the officer) did not ask him where he drove the truck; that defendant said De Mato had said he was to pick up some turkeys; that then De Mato denied ownership of the truck so did he; that while being taken to the call box he just ran away. The officer admitted that he never has investigated the ownership of the truck, nor did he try to ascertain whether the Motor Vehicle Department had issued a driver's license to defendant.

Another inspector of the police department, John R. Hunt, also testified as the conversations had with defenant at the Hall of Justice. Contrary to the testimony of McCann he stated that defendant then told the officers the truck belonged to his brother. Otherwise, this officer generally corroborated McCann's story of that conversation. In another conversation had with defendant Hunt testified that defendant told him that he had driven De Mato to 18th and Mission; that there De Mato got out and he stayed in the car; that a little later De Mato returned with four turkeys; that they then drove to 24th Street where De Mato delivered one of the turkeys to the barber. This officer also testified that defendant had a driver's license which was returned to him, but unlike McCann he could not testify whether or not it was in defendant's name. Hunt also testified that he saw three turkeys at the Hall of Justice and one was tagged; that at that time someone had taken the paper bags off and thrown them away. The barber was not produced as a witness.

Defendant took the stand as the sole witness on his own behalf. He produced a letter from the Motor Vehicle Department stating that no license had been issued to him since 1927. He denied stealing the turkeys, or burglarizing the store. He denied many of the statements attributed to him by the officers. He testified that he was coming out of the barber shop on 24th and South Van Ness when he met De Mato; that De Mato asked him for a ride home; that they were just getting into the truck when Officer Loftus yelled at them from across the street; that upon request for identification he showed the officer his draft card; that he told the officer the truck belonged to his brother; that there was no registration in the car; that the officer said he would have to arrest them; that on the way to the call box De Mato and the officer engaged in an argument; that the officer slapped De Mato in the face; that De Mato started to run away and the officer started shooting at him; that when De Mato was about a half block away, he, the defendant, ran away too; that he ran away because he was afraid. He also testified that the reason he ran away when he saw McCann at the theater was because McCann had a pistol in his hand (which McCann denied) and he was afraid he would be shot. He described in detail his activities on November 23rd, but produced to corroboration. He testified he purchased two turkeys that day at the California Poultry Company, and that these were the turkeys in the truck when he was arrested.

So far as the sufficiency of the evidence is concerned defendant's main contention is that the prosecution failed to prove that the turkeys in the truck were turkeys stolen from Tassi and Fey. While it must be conceded that there is much confusion in the evidence on this issue, and that there are inconsistencies in the record on this point, and while the evidence on this issue is by no means as clear as might be desired, we think the sufficiency of the identification of the stolen property, and the reconciliation of such inconsistencies was for the jury. However, it should be pointed out that the case is a close one on the facts. The evidence does not overwhelmingly establish the guilt of the defendant. The first jury to hear the evidence, in fact, disagreed as to defendant's guilt. This being so the materiality of any error in the introduction of evidence is thus of relatively more importance than it would be in a case where the evidence was overwhelmingly in favor of the prosecution.

As already pointed out, the information charged that defendant burglarized a butcher shop at 3299 Sixteenth Street, San Francisco, while Tassi testified that the shop was located at 3297 Sixteenth Street. Defendant urges that this constitutes a fatal variance between the information and the proof. It should be mentioned that Fey testified that the building was located at 3299 Sixteenth Street. (R.T. 34.) This is a complete answer to the contention. But even if the testimony showed that the building was located at 3297 instead of 3299, the variance would not be fatal. Of course, it is elementary that every essential element of the crime charged must be alleged and proved, and the proof must correspond with the allegations in the information. But in order to constitute a variance sufficient to require a reversal it must constitute a material variance, that is, it must be of such a substantive character as to have misled the accused in preparing his defense, or it must be of such a nature that the defendant may be placed in second jeopardy for the same offense. See many cases collected 2 Wharton$hs Criminal Evidence, 11th Ed., p. 1799, § 1028; People v. Larrabee, 113 Cal.App. 745, 299 P. 85; People v. Foster, 117 Cal.App. 439, 4 P.2d 173; People v. Harrington, 92 Cal.App. 245, 267 P. 942; People v. Terrill, 132 Cal. 497, 64 P. 894; People v. Evanoff, 45 Cal.App. 108, 187 P. 54; People v. LaMarr, 20 Cal.2d 705, 128 P.2d 345; People v. Guerrero, 22 Cal.2d 183, 137 P.2d 21. Here, of course, defendant was in no way prejudiced in preparing his defense by the alleged variance. Nor can he successfully contend that he may be placed in jeopardy against for the same offense. The rule is well settled that, on a plea of jeopardy, extrinsic evidence is admissible on the trial to identify the crime of which a defendant has been convicted. United States v. Remington, 2 Cir., 64 F.2d 386; Dunbar v. United States, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390.

It was not essential that the exact address of the building should have been set forth in the information as long as the building was described with sufficient particularly to show that it falls within the classification set forth in the statute, and as long as the defendant was apprised of the particular crime against which he had to defend. It is not essential that the information should go further in particularizing the place than to allege the county in which the crime is committed. People v. Redman, 39 Cal.App. 566, 179 P. 725; People v. Webber, 133 Cal. 623, 66 P. 38; People v. Geiger, 116 Cal. 440, 48 P. 389; see 4 Cal.Jur. p. 728, § 14. The Geiger case is directly in point. There the information charged a burglary in feloniously entering ‘a building at St. Helena, in the county of Napa.’ The proof was that the building was situated a mile and a half from St. Helena. The variance was held not to be material.

The next contention of defendant is that error was committed in admitting into evidence a record of defendant's previous commitment to the Preston School of Industry. As already indicated, defendant was the sole defense witness. On cross-examination he was asked if he had ever been convicted of a felony. He replied that he had not. He was then asked if he had ever pleaded guilty to a felony. The vigorous objections of his counsel having been overruled, he answered that he had not. He was then asked if he had ever pleaded guilty to a burglary. He answered that he had not. Thereafter, over objection, there was introduced into evidence a certain record of the Municipal Court of San Francisco. It showed that on May 16, 1941, defendant pleaded guilty to a burglary, that the degree of the crime was fixed as second degree, that he was then certified to the Superior Court, and that thereafter he was committed to the Preston School of Industry.

The introduction of this record was error of a most serious, and, we think, prejudicial nature. Section 2051 of the Code of Civil Procedure provides that a witness may not be impeached ‘by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony.’ The first question as to whether he had been convicted of a felony was proper. The second, as to whether he had pled guilty to a felony, was not, because, under the circumstances here existing, evidence of pleading guilty does not establish the nature of the crime as defined in § 17 of the Penal Code. That section provides that: ‘A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime is a misdemeanor. When a crime, punishable by imprisonment in the state prison, is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison.’ Under § 461, sub. 2, of the Penal Code, the punishment for burglary in the second degree is fixed at not to exceed one year in the county jail, or not to exceed fifteen years in the state prison.

It is clear that detention at the Preston School of Industry is something other than imprisonment in the state prison. It is also quite obvious that under § 17, above quoted, a plea of guilty followed by detention in a reformatory does not make the person involved a convicted felon within the meaning of § 2051 of the Code of Civil Procedure. Under § 17, since defendant was not imprisoned in the state prison, the offense must be ‘deemed a misdemeanor for all purposes after a judgment.’ This seems so clear that further discussion would be superfluous were it not for the somewhat confusing state of the authorities on this subject. In People v. Hoffman, 199 Cal. 155, 248 P. 504, it was held that it was error to introduce into evidence the record of the juvenile court which showed that the defendant had pleaded guilty in that court to grand larceny. In People v. Adams, 76 Cal.App. 178, 244 P. 106, it was held to be error, which with other errors warranted a reversal, where proof was admitted that defendant had been sent to a reform school. These cases were discussed and distinguished in People v. Maloney, 92 Cal.App. 371, 268 P. 472, where the prosecution introduced evidence that the defendant had pleaded guilty to a felony charge and had thereafter been committed to the Preston School of Industry. This was held not to be error, and, if erroneous, not to have been prejudicial. However, that case dealt with a provision of the Vehicle Code which provided that violation of the section constituted a felony. Considerable reliance was placed on this statutory designation. All three of the above cases were discussed in People v. Goodwin, 105 Cal.App. 122, 286 P. 1087, where the trial court admitted evidence that the defendant had been convicted of grand larceny and then required to serve a term at the Preston School of Industry. The court quoted from the Maloney case at length and with apparent approval. The actual decision of the court, however, was that, even if erroneous, the error was not prejudicial inasmuch as the evidence conclusively established guilt. In People v. Dykes, 107 Cal.App. 107, 290 P. 102, where the factual situation was identical with that in the instant case, the court held that the error, if error it was, was not prejudicial. The Maloney case, supra, was distinguished and probably disapproved in People v. Trimble, 18 Cal.App.2d 350, 63 P.2d 1173. The defendant in that case had a prior conviction of a violation of § 146 of the California Vehicle Act, St.1931, p. 2133—the same section involved in the Maloney case. That section expressly provided that a person committing the acts prohibited ‘shall be deemed guilty of a felony.’ After conviction the defendant was sentenced to pay a fine. The question involved was whether such a conviction made him a two-time loser. In holding it did not, the appellate court stated, 18 Cal.App.2d at page 351, 63 P.2d at page 1174: ‘The characterization given a penalized act by the Legislature is immaterial in determining whether or not it is a misdemeanor or a felony, the sole test being the nature and extent of the punishment imposed. People v. Sacramento Butchers' Ass'n, 12 Cal.App. 471, 489, 107 P. 712. If the punishment imposed is other than death or imprisonment in the state prison, the penalized act is for all purposes thereafter deemed a misdemeanor. Section 17, Penal Code.’ See, also, People v. Rowland, 19 Cal.App.2d 540, 65 P.2d 1333; People v. Lando, 92 Cal.App. 405, 268 P. 439; for a general discussion of the proper interpretation of § 17 of the Penal Code see People v. Oreck, 69 Cal.App.2d 317, 158 P.2d 940.

The respondent argues that the introduction of the record was proper for impeachment purposes inasmuch as the defendant had testified that he had not pled guilty to a felony. The obvious answer to this contention is that the question as to whether the defendant had pled guilty to a felony was improper and should not have been asked. Section 2051 of the Code of Civil Procedure specifically prohibits impeachment ‘by evidence of particular wrongful acts,’ with the sole exception that it may be shown that the witness has been ‘convicted of a felony.’ By asking one improper question and getting a negative reply the prosecuting attorney cannot lay the foundation for another improper question. This defendant had not been convicted of a felony. The asking of the challenged questions and the introduction of the record were clearly error.

Was the error prejudicial? This is sometimes a quite difficult point to determine. It is not a complete answer to point out that the evidence is sufficient to support the judgment. Accused persons are constitutionally entitled to have their guilt or innocence determined according to law, and to have their substantial rights protected. See many cases collected and commented on in People v. Adams, 76 Cal.App. 178, at pages 186 and 187, 244 P. 106. In the instant case, although the evidence is legally sufficient, it is by no means overwhelming. The identification of the turkeys was quite uncertain. There are unexplained lapses in the state's case. Why was the barber to whom one of the stolen turkeys was supposed to have been delivered not produced or his absence explained? What became of the tags that Fey testified had been delivered to the police? Who owned the truck? Did defendant have a driver's license? These, and other matters, were not sufficiently explained by the prosecution's case. The defendant was the sole witness on his own behalf. One jury had already disagreed on his guilt or innocence. This jury brought in a verdict of second degree burglary. Anything that materially affected defendant's credibility might very well have been the determining factor in the jury's deliberation. How can we say, under such circumstances, that the erroneous introduction of the record showing that defendant had pleaded guilty to gurglary and been sent to reform school might not have been the element that tipped the scales against him? Art. VI, § 4 1/212, cannot be used to excuse all errors committed by the prosecuting officials. Under the circumstances here we are of the opinion that the error was prejudicial.

The judgment and order appealed from are reversed, and the cause remanded for a new trial.

PETERS, Presiding Justice.

WARD, J., and DOOLING, Justice pro tem., concur.

Was this helpful?

Thank you. Your response has been sent.

Welcome to FindLaw's Cases & Codes

A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.

Go to Learn About the Law

Docket No: Cr. 2318.

Decided: July 07, 1945

Court: District Court of Appeal, First District, Division 1, California.

Get a profile on the #1 online legal directory

Harness the power of our directory with your own profile. Select the button below to sign up.

Sign up

Learn About the Law

Get help with your legal needs

FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.

Learn more about the law
Copied to clipboard