Summary
amending information to reflect true name of defendant
Summary of this case from People v. JosephOpinion
Department Two
Appeal from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. B. N. Smith, Judge.
COUNSEL:
Extrajudicial confessions of a defendant cannot be introduced in evidence until after the body of the offense has been proven. (People v. Simonsen , 107 Cal. 346; 3 Greenleaf on Evidence, sec. 30; People v. Jones , 31 Cal. 565; People v. Thrall , 50 Cal. 416; People v. Alviso , 55 Cal. 230; People v. Barry , 94 Cal. 481.)
R. A. Ling, for Appellant.
W. F. Fitzgerald, Attorney General, C. N. Post, and Henry E. Carter, Deputies Attorney General, for Respondent.
Witness Lo Sam testified that he owned the articles found in the possession of defendant, and had lost them from the house where he lived, while witness Hawley testified that he apprehended defendant with the stolen articles in his possession. This testimony was sufficient to establish the corpus of the crime. (People v. Jones , 31 Cal. 568; Wharton's Criminal Evidence, 9th ed., sec. 325; 3 Rice on Evidence, secs. 293, 297; Willard v. State, 27 Tex. App. 386; 11 Am. St. Rep. 197; People v. Jaehne , 103 N.Y. 182; Bouvier's Law Dictionary, tit. Corpus Delicti; Knickerbocker v. People , 43 N.Y. 177; People v. Weldon , 111 N.Y. 576; People v. Levison , 16 Cal. 98; 76 Am. Dec. 505; People v. Chambers , 18 Cal. 383; People v. Kelly , 28 Cal. 424; People v. Rodundo , 44 Cal. 541; People v. Clough , 59 Cal. 438; People v. Velarde , 59 Cal. 457; People v. Etting , 99 Cal. 578; People v. Abbott , 101 Cal. 647.) The conversation had between the witnesses Auble, Hawley, and Lo Sam, in the presence of the defendant, was admissible. (People v. McCrea , 32 Cal. 100; People v. Rodundo, supra .)
JUDGES: McFarland, J. Henshaw, J., and Temple, J., concurred.
OPINION
McFARLAND, Judge
The defendant was convicted of burglary, the charge being that he feloniously, burglariously, etc., entered the house of one Lo Sam with intent to commit larceny. He appeals from the judgment and also from an order denying a new trial.
The only point made by appellant for a reversal is that the trial court erred in allowing the witnesses Auble and Hawley to testify as to certain statements made by the appellant -- the contention being that there was no sufficient proof of the corpus delicti independently of said statements. But the witness Lo Sam had testified that he lived in a certain house; that he had certain articles of personal property in said house; that a part at least of said articles were in said house at 6 o'clock p. m. of the eighteenth day of December, 1895; that afterward, about 9 o'clock p. m. of the same day, the said witnesses Auble and Hawley, who were police officers, came to his, the witness Lo Sam's, house, having the appellant with them, and also the said articles of personal property belonging to said Lo Sam. The testimony of said witnesses Auble and Hawley, to which the objection was made, was substantially this: That between 8 and 9 o'clock p. m. of the same day they saw the appellant some distance away from the house of said Lo Sam; that said appellant had with him a tin box containing opium dope, or "yen see"; that said witnesses asked said appellant where he got the said box, whereupon the appellant handed the said box, and also some other things, called by said witnesses "the rest of the stuff," to said witness Hawley; that appellant told said witnesses that he had got the things in a laundry, and would show them the place; that he took said witnesses to the house of said Lo Sam, and, in the language of one of said witnesses, "went right to the bunk and showed us where he got the stuff." He said he took it because he was hard up, and expected to get a good price for it in Chinatown.
We think that the testimony of the witness Lo Sam, and also the facts testified to by the witnesses Auble and Hawley, independent of what appellant said, were sufficient, within the rule of the most extreme cases on the subject, to so show the corpus delicti as to justify the admission of the said statements of the appellant. Appellant's counsel contend that the evidence does not show, or even tend to show, that the appellant was ever in the possession of the articles alleged to have been stolen from the witness Lo Sam. This contention, however, cannot be maintained. The prosecution was no doubt somewhat careless in not asking the witnesses more particularly about the specific articles stolen, or in not seeing that the testimony was fully put into the bill of exceptions. It is clear enough, however, that the articles taken from the appellant by the said officers were recognized by the witness Lo Sam as his missing property; and a razor, the opium dust, and some other articles, were specifically mentioned by the witnesses. There was also an objection made to the question asked the witness Lo Sam, whether, when the said two police officers and the appellant were present at his house, either of them said anything to him about the things that were stolen; but the answer of the witness was of no consequence, he merely saying: "He, the defendant, didn't say anything, but the two men asked me if those things were mine. There was nothing else said about the things."
The judgment and order appealed from are affirmed.