Opinion
Docket No. 1774.
September 25, 1941.
APPEAL from a judgment of the Superior Court of El Dorado County and from an order denying a new trial. George H. Thompson, Judge. Affirmed.
Prosecution for burglary. Judgment of conviction of burglary in the second degree, and order denying new trial, affirmed.
McAllister Johnson and O.F. Meldon for Appellant.
Earl Warren, Attorney General, and J.Q. Brown, Deputy Attorney General, for Respondent.
THE COURT.
Defendant was tried upon two counts of an information for burglary. He was found guilty by a jury upon both charges, and appeals from the judgment of conviction of burglary in the second degree, and from an order denying his motion for new trial.
The first count reads as follows:
"Of having, on the 24th day of January, 1941, wilfully, unlawfully and feloniously entered a cabin belonging to one Walter Bidstrup with intent then and therein to commit the crime of theft, to-wit, larceny."
The second count is identical, except that the date is March 20, 1941.
The crime charged is defined by section 459 of the Penal Code as follows:
"Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, mine, or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary."
[1] The testimony showed that Bidstrup was the owner of several cabins located on a ranch near the town of El Dorado. It is contended that the information was fatally defective for the reason that it failed to designate the particular cabin or cabins which were entered. We think that the information sufficiently complies with the requirements of section 952 of the Penal Code, in that it is "in the words of the enactment describing the offense." Furthermore, no objection was made to the information by demurrer or otherwise. We can see no prejudice resulting from the failure to describe the particular building or buildings entered with more particularity. The cases relied upon by appellant are all based upon the last named section prior to the amendment thereof by Stats. 1927, page 1043. By that amendment the former rule which required the statement of more detailed facts in an indictment or information, was greatly modified, and the rules of criminal pleadings liberalized.
[2] It is next contended that the evidence fails to show the commission of the crime of burglary, in that the prosecution did not prove that defendant entered any building or other structure defined in section 459 of the Penal Code. In other words, it is contended that the crime, if any, was larceny and not burglary. We believe there is sufficient evidence from which the jury could reasonably infer that defendant entered at least one cabin. Referring to the first count, the owner of the premises testified that, prior to January 25, 1941, there were two Ford motors and a lot of machinery in a building known as "Tom's Cabin." There was also a box of nuts and bolts and valves in the place. He further testified that when he visited the cabin on the morning of said day, he found that the door had been knocked open by drilling off the lock, and that the articles mentioned were missing. On March 20th, the date of the second offense, the owner again visited his ranch. He testified that there were a number of other articles "missing from Tom's Cabin," including two magnetos, a drive-shaft which was standing in the corner of the building, and a rock-drill.
All the articles described above were found by the officers in the possession of a junk-dealer in Sacramento, to whom they had been sold by appellant. The latter admitted that he took said articles from the premises of Bidstrup, but stated that they were sold to him by a man who was standing by the side of the road. Appellant testified that he asked the man if he had any junk, and that the latter led him to the cabins mentioned. Appellant testified he drove his truck to the vicinity of the cabins and loaded numerous articles. He denied having entered any buildings. This was on January 25th. On March 20th, according to his testimony, the act was repeated, and more articles taken from the premises. The stolen articles were in the buildings just prior to the visits of appellant to the premises. We believe that such evidence fully justified a finding that appellant entered the buildings in question. He admitted the taking and possession of the stolen articles. He was seen in the vicinity of the cabins a few days prior to the first offense. The jury evidently did not place much credence in his explanation. This may be due to the fact that he had been previously convicted of stealing government property — a felony — and also of another felony — stealing carpenter's tools. He was also impeached in his testimony respecting the manner in which he loaded his truck. He testified that he did not back up to within five feet of the cabins. A witness for the people testified that there were tire marks up to within five feet of the cabin. Such evidence would also tend to support an implied finding to the effect that appellant did enter one or more of the buildings. The case of the people goes much further than the mere possession of stolen property. Defendant admits the taking of the property from the premises. The evidence is sufficient to support the verdict and judgment.
[3] The motion for new trial was based upon newly discovered evidence. One Rennie James Younger, who gets his mail in Sacramento, made an affidavit in which he said that he was employed by appellant on March 20, 1941, to assist in hauling junk. The facts set forth corroborate the version of appellant. Younger said that neither Blain nor any of those present entered any building. Appellant filed an affidavit in which he explained the failure to produce Younger as a witness at the trial. He states that he searched for weeks to locate Younger, and finally found him after the trial. In 20 Cal. Jur., sec. 58, pages 81 and 82, it is stated:
"The rule that the decision of a motion for new trial rests largely in the sound discretion of the trial court, applies with full force to a motion on the ground of newly discovered evidence. The principal reason for this is that the trial judge is generally in a much better position to determine the value and effect of the evidence and, therefore, to exercise such discretion, than the appellate court. Accordingly the decision of a lower court upon a motion for new trial on the ground of newly discovered evidence is rarely interfered with; and it is settled that the exercise of its discretion in granting or denying a motion for new trial on that ground will not be disturbed except in a case of manifest abuse."
The proposed evidence is cumulative in character. In 20 Cal. Jur., sec. 62, pages 96 and 97, it is said:
"The determination of the question whether newly discovered cumulative evidence is such as to have produced a different result if it had been presented on the trial, rests largely if not wholly in the sound discretion of the trial court; and, whether the motion is granted or denied, such discretion will not, according to settled principles, be interfered with, except for manifest abuse."
We are not prepared to hold that the denial of the motion was an abuse of discretion upon the part of the trial court. We therefore do not feel at liberty to disturb the conclusion reached in denying the motion.
Other points are raised by appellant, but they lack any substantial merit.
The judgment and order are affirmed.