People v. Gregor

The defendant was charged with two counts of burglary, and with a prior robbery, for which he had served time. He admitted the prior, but pleaded not guilty to the two main charges. He was convicted by a jury of both counts contained in the information. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

One of the charges involved the burglary of a radio store at 1282 Market Street. Sometime between 6 p. m. on Saturday, November 6, 1954, and 9 a. m. on Monday, November 8th, that store was broken into by means of a hole cut in the ceiling of the store from a hotel room above. Two Hallicrafter radios, a Zenith portable radio whose serial number was known, and several other radios were missing. The safe had been broken into, the combination lock broken off, and the tumblers punched out. Some $1,551 was taken from the safe, consisting of checks, cash and coins, some of the coins being wrapped. A pink slip to a Cadillac owned by the owner of the store was also missing.

The second charge involved the burglary of a service station at 1200 Clayton Street, which was burglarized during the night of December 1, 1954. Entry here had been secured by cutting a hole by torch through a steel wall from one of the restrooms of the establishment, into the lubrication room, which, in turn, led into the office. Here, too, the safe had been broken into, its dial knocked off and the tumblers punched out. Money and checks were taken from the safe.

Evidence of another burglary, not charged, also appears in the evidence. The Peninsula Distributing Company in San Mateo was burglarized during the night of September 11, 1954, entry being secured through a skylight. Here, too, the safe had been pried open. A checkwriting machine, 58 blank checks, and two petty cash boxes were taken.

The pertinent testimony at the trial can be summarized as follows: An inspector of the police robbery detail testified that he arrested defendant on December 20, 1954, under the

The defendant admitted to the officer that the apartment was his, but at first denied any knowledge of who owned the items above mentioned. Upon further questioning, he at first remained mute, but then stated: “Well, they are in my possession, I guess they must be mine.” He also admitted renting the apartment under an assumed name.

There was evidence from another police officer that the equipment and tools found in the apartment were capable of effecting entry to the radio store and service station, were capable of punching out the safes there located, and were commonly used by burglars in breaking, or entering, or leaving the premises.

One of defendant’s defenses was based on evidence that at the time of the burglaries he had a broken back, was encased in a large body cast, and could not have done the physical work involved in the burglaries. A doctor testified that on September 27, 1954, 40 days before the radio store burglary, and 64 days before the service station burglary, he had examined defendant, who gave a false name, and discovered that defendant had a fractured vertebra in his spine. Defendant was taken to a hospital where he remained until October 6, 1954. As part of the prescribed treatment defendant was encased in a large body cast which he was still wearing

The specialist who treated defendant testified that the injury suffered by defendant was very painful and made heavy work difficult and painful. Defendant, however, after the cast was put on, was ambulatory, and, at the time of the burglaries, could drive a car, and could, of course, operate a walkie-talkie telephone.

The defendant testified that upon leaving the hospital on October 6, 1954, he went to live with a Mr. and Mrs. Decota in South San Francisco; that he had only been at his apartment, where he was arrested, twice between August and December, 1954, and that he moved back to his apartment on December 20, 1954, at 1 or 2 a. m. Several witnesses corroborated defendant to the extent that they testified that during November and early December, 1954, they had seen defendant at the home of the Decotas, where he was obviously then living. At least one of these witnesses testified that by early December defendant was able to drive a car. Neither Mr. nor Mrs. Decota was called to testify.

Defendant explained his use of false names by testifying that he was trying, in this fashion, to break off associations with persons he had met in San Quentin. He also testified that for part of the time he was living in South San Francisco he had sublet the apartment to a girl named “Lois,” and that in October, 1954, he had given access to the apartment to a former prison friend by the name of Cornuelle, sometimes referred to as Cornell. Defendant denied knowing that the stolen goods or the burglar’s tools were in his apartment, denied ever seeing them before, claimed that the Zenith radio was in the closet and not in the kitchen, but admitted that the Hallicrafter radio was in the living room, denied admitting that the property belonged to him, and, in general, denied any connection with the burglaries. He admitted to having paid the rent on the apartment ($125 a month) since 1951, and admitted that he was purchasing a Cadillac. He had not worked for a year prior to his arrest, claiming to have earned enough to live by gambling.

Cornuelle, at the time of trial an inmate of San Quentin, testified that he had lived in the defendant’s apartment from October to late December, 1954, that the burglary equipment and stolen articles were his, and that defendant knew nothing about these articles; that the Hallicrafter radio found in the

The appellant first attacks the sufficiency of the evidence by claiming that the only evidence against him is that he was found in possession of recently stolen property, and by urging that such evidence is not sufficient to sustain a conviction. A few quotations wall suffice to point out the rule in this regard:

In People v. Mora, 139 Cal.App.2d 266 , 271, 272 [ 293 P.2d 522 ], this court stated: “. . . when a person is shown to be in possession of recently stolen property slight corroborative evidence of other inculpatory circumstances tending to show guilt is sufficient to support a conviction.”

In People v. Taylor, 4 Cal.App.2d 214 , 217 [ 40 P.2d 870 ], the applicable rules are summarized as follows: ‘1 The failure of the accused to account for such possession upon a theory inconsistent with his guilt of the offense charged, or to show that the possession was honestly obtained, is itself a circumstance tending to show guilt. This corroborating evidence need be but slight, provided it is convincing. Flight, false statements showing consciousness of guilt or as to how the property came into defendant’s possession, assuming a false name, inability to find the person from whom defendant claimed to have received the property, have each in turn been held to be sufficient to connect the accused with the crime when proven in connection with possession of the stolen property. [Citing two cases.] And when defendant makes an explanation as to the manner in which he came into possession of such stolen property, the question as to whether he is telling the truth in that regard rests solely with the jury.” (See also People v. Smith, 128 Cal.App.2d 706 [ 275 P.2d 919 ] ; People v. Nelson, 126 Cal.App.2d 453 [ 272 P.2d 536 ]; People v. Clark, 122 Cal.App.2d 342 [ 265 P.2d 43 ]; People v. Russell, 34 Cal.App.2d 665 [ 94 P.2d 400 ] ; People v. Bonner, 5 Cal.App.2d 623 [ 43 P.2d 343 ] ; People v. McClain, 115 Cal.App. 505 and 512 [ 1 P.2d 1085 ].)

How do these rules apply to the present case ? Obviously, appellant was found in possession of recently stolen property. Now what corroborative evidence was there to support the finding of the jury that appellant had stolen this property? First, along with the stolen property was found an assortment of burglar’s tools of the type that could have been used in the two charged burglaries. According

Appellant next objects to the admission into evidence of the facts in reference to the Peninsula Distributing Company burglary, and of the checkwriting machine that had been stolen in that burglary and found in appellant’s apartment. Of course, evidence of other crimes is admissible to show a common pattern, plan or scheme, or where such evidence helps to show motive, intent, premeditation, guilty knowledge or malice. (People v. Cassandras, 83 Cal.App.2d 272 [ 188 P.2d 546 ] ; People v. Albertson, 23 Cal.2d 550 [ 145 P.2d 7 ]; People V. Dabb, 32 Cal.2d 491 [ 197 P.2d 1 ]; People v. Newson, 37 Cal.2d 34 [ 230 P.2d 618 ].)

In the instant case the challenged evidence was offered to show criminal intent and common plan. The jury was instructed, at the request of the prosecutor, that the evidence

It should also be mentioned that when the evidence of the Peninsula Distributing Company burglary was first offered by the prosecution, appellant offered no objection. No objection was made until the stolen checkwriting machine was offered into evidence. Generally speaking, failure to object amounts to a waiver. (People v. King, 13 Cal.2d 521 [ 90 P.2d 291 ] ; People v. Whalen, 70 Cal.App.2d 142 [ 160 P.2d 560 ] ; People v. Odom, 72 Cal.App.2d 72 [ 164 P.2d 68 ]; People v. Hurst, 36 Cal.App.2d 63 [ 96 P.2d 1003 ] ; People v. Descant, 51 Cal.App.2d 343 [ 124 P.2d 864 ].)

Appellant next charges the prosecutor with seven acts of prejudicial misconduct.

1. Again appellant urges that evidence of the Peninsula Distributing Company burglary was inadmissible and that to offer it was prejudicial misconduct. As already held, the evidence was admissible.

2. Next objection is made that the prosecutor was guilty of prejudicial misconduct during his redirect examination of the arresting officer when he was queried about the “walkie-talkie bank robbers.” This occurred under the following circumstances: The arresting officer on direct told of finding the walkie-talkie in appellant’s apartment. On cross-examination appellant’s counsel then asked the officer if, at the time of the burglaries here involved, the police were also looking for some walkie-talkie bandits who had robbed a Bank of America branch on Geary Street. The officer replied, “Yes.” Then the officer was asked if appellant had not been exonerated of that charge, to which he replied, “No,” that no charge had been filed, but the investigation was still open. Then on redirect occurred the incident of which complaint is made. The prosecutor asked the arresting officer if the bank investigation was still open, and if the bank robbers were masked. The officer replied, “Yes.” Then he was asked if those robbers used a walkie-talkie, to which he replied that they did use one very similar to the one in evidence. Obviously, this redirect examination was proper. Appellant’s counsel opened the subject, apparently in an attempt to raise the inference that appellant was free from complicity in the bank crime that had been widely

3. After the walkie-talkies had been introduced into evidence another officer testified that these machines were sometimes used by burglars for communication between the inside operator and the lookout. On the objection of appellant that this was speculative, this evidence was stricken. In its instructions the trial court told the jury to disregard all evidence that had been stricken. Certainly this is not a situation where the mere asking of the question was prejudicial. Simply because an objection is sustained to a question does not mean that the mere asking of it constitutes prejudicial error.

4. Objection is next made to the cross-examination of one of appellant’s medical witnesses who was asked if appellant’s back injury could have been caused by a fall from a building or down a light well. The obvious purpose of the question was to raise the inference that appellant fell while engaged in another burglary of which there was no evidence. Thus, the question was clearly improper, and the trial court so ruled by properly sustaining an objection to it. Thus, there was no prejudice.

5. An improper question was also asked appellant on cross-examination when he was asked concerning the circumstances in reference to his prior conviction. This occurred under the following circumstances: The prosecutor asked appellant if he knew Cornuelle, and when appellant replied that he did, asked if Cornuelle was an ex-convict, appellant replied: “In fact, in 1945, me and Arthur Cornuelle went to the penitentiary on the same offense there; we both pled guilty to armed robbery.’’ The prosecutor then asked: “You broke into Grison’s Restaurant together, and burglarized the restaurant and also held up the-.” Appellant’s counsel here objected, and, after some argument, the trial court sustained the objection. The question was improper because it attempted, improperly, to go into the background of the prior, and also implied that appellant was guilty of burglary as well as armed robbery. But the trial court properly sustained the objection. We cannot hold that the mere asking of the question was prejudicial misconduct.

6. The sixth assignment of misconduct relates to evidence concerning the stolen license plate found in appellant’s possession, and the automobile from which it came. It will be remembered that the arresting officer testified that when

7. The last assignment relates to evidence relating to the arrest of appellant in Las Vegas while in the company of Ralph Hill. It will be remembered that in the burglary of the radio store an ownership slip to a Cadillac was stolen. The Cadillac belonged to the owner of the radio store, and it was stolen several days after the radio store burglary. This is a different Cadillac from the one found near appellant’s apartment. It appears that a person by the name of Stelling was charged in Nevada with a violation of the Dyer Act in connection with this Cadillac. Appellant admitted knowing Stelling, “vaguely.” He was then asked if, in company with Ralph Hill, he had not gone to Las Vegas to attend Stelling’s trial. Appellant replied that he had gone to Las Vegas with Hill, not for the trial, but for Stelling's sentencing, because Hill, not appellant, was interested in Stelling. Hill testified that appellant accompanied him to Las Vegas to help with the driving, and to gamble, while the witness went to see Stelling. No objection

We have reviewed all seven charges of misconduct. Undoubtedly there were several questions asked by the prosecutor that should not have been asked, and that he should have known were objectionable. But after reading the entire record we cannot say that such conduct was prejudicial. Certainly we cannot say that “a different verdict would not have been improbable had the error not occurred.” (People v. Teixeira, 136 Cal.App.2d 136 , 151 [ 288 P.2d 535 ].)

Appellant next objects to several instructions which he concedes correctly state the law but which he contends find no support in the record. He contends that this was error, under the well settled rule that a jury should not be instructed on points not supported by the record. (People v. Moore, 43 Cal.2d 517 [ 275 P.2d 485 ]; People v. Silver, 16 Cal.2d 714 [ 108 P.2d 4 ].)

Appellant first objects to instructions correctly setting forth the law as to the liability of principals. A principal is, of course, one who commits the charged offense or who knowingly and with criminal intent aids and abets in its commission, or, whether present or not, advises and encourages its commission. (Pen. Code, § 31.) Certainly the evidence here warranted such an instruction. The evidence shows that appellant could not have entered the premises himself because of his broken back and the cast. But the evidence also shows that he could drive a car and could operate a walkie-talkie. Such an apparatus was found in his possession, along with burglary tools and some of the stolen property, which appellant told the officer were his. This evidence tended to show that appellant was an aider and abettor of the crimes charged, and justified the court in giving the instruction on principals.

The judgment and order appealed from are affirmed.

Bray, J., and Wood (Fred B.), J., concurred.

A petition for a rehearing was denied June 6, 1956, and appellant’s petition for a hearing by the Supreme Court was denied June 20, 1956.