Opinion
As Corrected May 1, 1944.
Rehearing Denied May 2, 1944.
Hearing Granted May 25, 1944.
Appeal from Superior Court, Los Angeles County; Arthur Crum, Judge.
Abe Fox was convicted of grand theft, and he appeals.
Affirmed. COUNSEL
Morris Lavine, of Los Angeles, for appellant.
Robert W. Kenny, Atty. Gen., Frank Richards, Deputy Atty. Gen., and Fred Howser, Dist. Atty., and Jere J. Sullivan, Deputy Dist. Atty., both of Los Angeles, for respondent.
OPINION
MOORE, Presiding Justice.
Appellant was indicted for two felonies: Receiving stolen property and grand theft. He was acquitted of the former and convicted of the latter. On this appeal he makes four assignments in support of his contention that he was illegally convicted.
The Evidence Is Sufficient.
He maintains that the evidence does not support a conviction of grand theft. He undertakes to show that the testimony of all of the prosecution witnesses establishes that some person other than appellant stole the property from the possession of The System Freight Service which maintained a terminal of its freight distribution business on Mateo Street, between Bay and Sacramento Streets in Los Angeles.
The circumstances surrounding the asportation of the property commence with the afternoon of January 11, 1943. About 5:30 o’clock one Looft, an employee of The System, arrived at the terminal with a truck load of 100 cases of cigarettes, cases of cigars, and other articles. Having parked the truck unlocked according to custom on the south side of Bay Street, slightly west of Mateo and next to the building of The System, he proceeded to the unloading docks where he deposited the bills of lading of his cargo in the appropriate pigeon hole. He then visited a nearby lunch counter on Sacramento Street. While there at about 6:50 o’clock he saw the truck with its load traveling westerly on Sacramento Street, believed by Looft at that time to be in charge of one of The System’s "truck spotters." Shortly thereafter Looft returned to the unloading docks and worked until 7:30 p. m., at which time all trucks had been unloaded except the one which Looft had parked on Bay Street. Search followed but the truck was not found. Looft had given no one permission to remove it. After it had been parked on Bay Street the dock foreman saw the loaded truck where Looft had parked it. Witness Reismer identified Looft’s truck as it went west on Sacramento Street about dusk and he observed that the driver was neither Looft nor appellant. The truck was found on the following day about two miles from the office of The System. Subsequently, the police recovered the merchandise which had been on the truck, with the exception of three cases of cigars and 76 cases of cigarettes
One Alex Gorberg was arrested by police on suspicion of having received the stolen merchandise. While he was under detention at the Newton Street police station about eight o’clock in the evening of February 6, 1943, appellant visited the station with counsel he had employed to effect Gorberg’s release. Although that prisoner was released, Officer Varela took appellant into the detective bureau where appellant was subjected to a series of questionings relative to his knowledge of the stolen merchandise which then reposed in the garage on East First Street under lease by Fox and which had been removed from the Rosenthal garage at 401 South Boyle, near the Fox residence.
Inasmuch as appellant contends (1) that the only evidence connecting him with the theft is the testimony of the officers who engaged him in the conversations following his initial detention and (2) that the statements then made were due to violations of his right of due process of law, we here present seriatim the substance of appellant’s incriminatory admissions.
(1) The first conference was at the Newton Street Station. In answer to the question as to appellant’s knowledge of the tobacco in his garage he stated that he knew nothing. After the officers had reassured him of their knowledge of his removal of the tobacco from the garage at his residence to the garage at his store, he at first denied possession of means of access to his own garage. But as soon as Fox was told that the officers had visited his place and found the garage locked and were sure his finger prints were on the boxes, he stated that he had helped Gorberg move the merchandise into his First Street garage from the place on Boyle Avenue. After Fox told the officers of the delicate condition of his wife, they advised him that it would be necessary to have a police matron go along to search his home for the key. He then volunteered to accompany the officers and himself enter his home and get the key. It was then arranged by Captain Chilson for one officer to accompany Fox into his home. Appellant was then asked to explain his denial of knowledge of the tobacco in his garage. He replied that he saw no reason why he should make any statement as to the ownership of the merchandise. At that juncture Officer Doane led Fox through Captain Chilson’s office where Gorberg sat. On leaving that room Fox said: "I have changed my mind; I don’t admit anything. I don’t know where any garage is; and I don’t know anything about the tobacco." As the officers and Fox were about to enter an automobile the Captain told him again that the tobacco was in the East First Street garage and that Gorberg had told the whole story. Appellant’s reply was: "If Gorberg has told you the story, I will take you and get you the key."
(2) The party then drove to the Fox home at 401 South Boyle. Accompanied by Officer Doane defendant passed through the living quarters, reassured his wife, took from a little compartment seven keys, and stated that one of them would unlock the door of the rear building at 2026 East First Street. On arriving there Fox identified the key, the door was opened and he pointed, saying, "There is the merchandise." It will be observed that within less than three hours by civil and courteous questioning the officers had obtained statements from Fox to the effect that he had assisted Gorberg in transporting the stolen cargo to the East First Street address from his premises on Boyle Avenue and that the key to the building where the tobacco was stored was in his home. During the same period defendant entered his home, obtained the key, led the officers into the repository and pointed out the stolen goods. The foregoing admissions were made and acts done after Fox was apprised of Gorberg’s confession of his own guilt in receiving a part of the proceeds of the sale of the larger portion of the cargo and of his purchase of a case of the cigarettes.
(3) On the return of the party to the City Hall about midnight Fox and Gorberg were brought together. The latter then stated that Fox had told him that he had a large quantity of cigarettes and would sell them at $50 a case; that he employed one Newman to arrange the terms of sale; that Fox procured the truck; that Fox assisted him in loading the cigarettes; that he made the delivery to the purchaser in three trips from the garage behind appellant’s store; that he received $3,500 in paper money from Newman; that he delivered the money, less $140 taken by Newman for his commission; that Fox then asked Sam Rabin to lock it in his safe; that on the following day he delivered appellant another $1,150 paid by the purchaser, and was paid $232 for his commission.
(4) In a conference at three o’clock Sunday morning after Officer Doane informed Fox of having followed his automobile on a Sunday night, Fox gave utterance to a fantastic story which was intended by him as a denial of participation in the asportation of the merchandise. He said that two days before the truck disappeared he had a telephone call from his banker to ascertain whether Fox could handle a large cargo of cigarettes; that he thought no more of it until twenty minutes before the load was taken when he told his informant where to take the load; that he went to the place designated and at once recognized a man wearing an overcoat as the one who had brought the truck; that after the stranger disappeared, he, Fox, drove the truck to his home and stored the merchandise in his own garage; that the theft was a set-up job of the truck company; that a "two-time loser" had driven the truck from its location on Bay Street. He concluded that conference with the statement, "You would be surprised how little I really made out of this deal."
From a reading of the transcript it appears that every utterance of Fox was given with much eagerness, if not enthusiasm. There is no evidence of ennui or depression from loss of sleep. Not a complaint escaped his lips. The conference was marked by the same civilities and urbanity that attends a discussion of intimate friends. Fox displayed neither impatience nor evidence of discomfort. He was neither cowed by the insignia of the police nor distressed by the absence of friends. He neither indicated a preference for the presence of his counsel nor uttered any declaration which might be deemed a confession of his participation in the larceny of the nicotine cargo. But his explanation of the manner of his gaining possession of the stolen goods, taken in connection with the testimony of Gorberg and Rabin, was such as to warrant a conviction.
(5) Following the conference of the early Sunday morning the officers should have promptly taken their prisoner before a magistrate for appropriate proceeding. Their subsequent conduct towards the accused had nothing to commend their judgment as brave and dispassionate officers. From the close of that conference until the release of appellant the officers behaved like novices, evidently motivated by the theory that Fox was concealing the guilt of important personages in a vast criminal enterprise. The subsequent questioning failed to elicit from him a confession but, on the contrary, only his persistent denials of connection with the theft.
After the three officers had given in evidence their conversations with Fox, Gorberg, then under indictment for having received a part of the stolen property, repeated on the witness stand substantially all he had told the officers with all of the details of the sale at $50 a case, of the loading of the cigarettes with Fox’ assistance, of his delivery of the three loads to a wholesale tobacco company and of the collection and division of the money. The witness Rabin testified that on January 16, 1943 (five days after the theft), at his machine shop and at the request of Fox, he received a paper bag containing some 30 bundles of paper money for safe keeping; that five days later he handed the money to Gorberg or appellant, both being present; that on prior occasions he had received for safe keeping bundles of money from Fox, but not from Gorberg. Proof was made that the value of the cigarettes was not less than $60.06 per case.
Inasmuch as the sufficiency of the evidence is to be determined from that offered by the prosecution, it is unnecessary to quote or review all the testimony of appellant. He contradicted the substantial portions of the testimony of Gorberg as well as that of the officers, and specifically denied that he had made any of the statements imputed to him which under all the circumstances might very reasonably have been considered as admissions of his participation in the driving of the truck from Bay Street to his home, the place of unloading. He testified that he had patronized Gorberg for three years but had never suspected the latter of possessing stolen property; that Gorberg had told him that he had purchased merchandise from a party who was going into the army; that he had suggested to Gorberg that the latter use for storage a garage in the rear of his store at $2.50 for a month; that the garage at the First Street address belonged to one Feinberg; that he had never assisted Gorberg to load the stolen merchandise on a truck, but had told the officers it belonged to Gorberg; that he had neither received nor paid any money on account of the transaction except the month’s rental paid by Gorberg for the garage. He denied that he had told the officers anything about a banker and that he even knew a banker.
The corpus delicti was established beyond all doubt. People v. Locurto, 97 Cal.App. 185, 191, 275 P. 462; People v. Siderius, 29 Cal.App.2d 361, 84 P.2d 545. Looft, the driver for The System, gave no one permission to take the truck or its cargo. The only witness to its removal from Bay Street saw that Looft was not in the driver’s seat as the truck rolled away. When the truck was discovered it was some two miles from its parked location; the merchandise was gone. The sole question remaining is whether the evidence justifies a finding that appellant was connected with the commission of the crime. Believing the testimony of the officers, as presumptively the jury did, the incriminatory statements made to them by Fox could have left no doubt of his guilt. People v. Black, 111 Cal.App. 90, 96, 295 P. 87; People v. Madsen, 93 Cal.App. 711, 714, 270 P. 237; People v. King, 30 Cal.App.2d 185, 195, 85 P.2d 928; People v. Meyers, 7 Cal.App.2d 351, 354, 355, 46 P.2d 282.
For reasons hereinafter mentioned appellant challenges the statements as legal proof. But if we eliminate from consideration all statements made to the officers, the circumstances otherwise proved are sufficient to support the judgment. (1) Promptly following the theft he told Gorberg that besides some cigars he had 96 cases of cigarettes; that he would accept $50 a case for them and pay $4 a case to Gorberg. Within five days after the theft Gorberg assisted appellant in loading the cigarettes onto Steinberg’s truck for delivery to a tobacco company which had purchased them. He left $3,360 of the money at Rabin’s at the suggestion of Fox and was paid directly $1,150 as the final payment on the purchase price. After the sale and removal of the cigarettes Fox sold Gorberg a case of cigars. They drove in Gorberg’s car to the Fox home garage, the door of which appellant unlocked, took out the case containing 50 boxes of cigars and delivered them to Gorberg. (2) On the evening of his apprehension appellant accompanied the officers to his home, produced the key to his garage, and pointed out the residue of the loot. Feinberg, owner of that garage, had permitted Fox to use it as a store room for over a year. (3) Defendant contradicted in its entirety the testimony as well as the extrajudicial statements of Gorberg. And (4) he testified that at his early conferences with the officers he denied the truth of Gorberg’s story.
If the testimony of Gorberg were excluded on the ground that he was an accomplice, there still remains such a mesh of circumstances as completely to entangle Fox. Either alone or in concert with another he accomplished the larceny. People v. Ward, 105 Cal. 652, 660, 39 P. 33; In re Stanley, 90 Cal.App. 132, 134, 265 P. 561; People v. Horton, 7 Cal.App. 34, 36, 93 P. 382. It was necessary only that the state prove that the theft was committed by Fox alone or was the result of an agreement by Fox with another party who at first drove the truck away from Bay Street. People v. Palmer, 92 Cal.App. 323, 327, 268 P. 417. If Fox encouraged, or assisted in, the actual asportation he is guilty as an accomplice. People v. Herman, 49 Cal.App. 592, 595, 193 P. 868. When stolen property is found in the possession of the accused shortly after its theft, only slight evidence is required to connect him with the crime. People v. Russell, 120 Cal.App. 622, 625, 8 P.2d 209; People v. Morris, 124 Cal.App. 402, 404, 12 P.2d 679. Possession with an unsatisfactory explanation as to how it was effected will warrant a conviction of theft. People v. White, 35 Cal.App.2d 61, 68, 94 P.2d 617; People v. Russell, supra. If an explanation is attempted by the accused, it is for the jury to judge of its truth. People v. McClain, 115 Cal.App. 505, 508, 1 P.2d 1085. Where one had knowledge that a third party was about to commit a theft and later met the thief with the booty and assisted him in making his escape, he was an accomplice of the thief and guilty as a principal. People v. Ratten, 39 Cal.App.2d 267, 270, 102 P.2d 1097. His actual presence at the scene of the taking is not necessary. If he conspired with the thief for the latter actually to take the property from the dominion of its owner, he is an accomplice. People v. Del Cerro, 9 Cal.App. 764, 767, 100 P. 887. In the case at bar Fox did not as an alien to the theft receive the stolen merchandise. He alone or he and his agent together stole it. Brown v. State of Oklahoma, 7 Okl.Cr. 678, 126 P. 263, 265. Fox alone drove the cargo to its place of concealment. Fox alone promptly sold the major portion of it and kept the money. Fox, and he only, was found in possession of the residue. The explanation of these circumstances was anything but satisfactory. Viewing them in the light of appellant’s act of driving the truck from a point on a public street which he declined to indentify, of the storage of the merchandise in his own garage on the day of the theft, of his sale of the cigarettes to the wholesale tobacco company at a price 16 2/3 per cent below market, his denial of his own former statements and his contradictions of adversary witnesses on all material proof, we find no error in the judgment for lack of evidentiary support. A transaction comprising successive acts of taking, induced by a single felonious impulse operated upon by a single unintermittent force, constitutes a continuous act of larceny. People v. Dillon, 1 Cal.App.2d 224, 229, 36 P.2d 416.
Rights of Due Process Not Violated.
Appellant contends that his rights of due process of law were violated in that he was not promptly taken before a committing magistrate after he had been arrested; that he was detained by the officers in the police station where he was questioned for the greater portion of the time during his 48 hours detention; that while he was taken from one police station to another and subjected to continuous questioning by the police he had neither friends nor counsel, and at all times he was grievously concerned for his wife who was then in a delicate condition. In support of this contention appellant cites a number of decisions by the United States Supreme Court which reversed convictions because the rights of due process had been spurned. Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, 90 A.L.R. 575; Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; White v. Texas, 310 U.S. 530, 60 S.Ct. 1032, 84 L.Ed. 1342; Lomax v. Texas, 312 U.S. 674, 675, 61 S.Ct. 739, 85 L.Ed. 1115; Gros v. United States, 9 Cir., 136 F.2d 878; People v. Dye, 119 Cal.App. 262, 6 P.2d 313; People v. Quan Gim Gow, 23 Cal.App. 507, 138 P. 918; Ziang Sung Wan v. U.S. 266 U.S. 1, 45 S.Ct. 1, 69 L.Ed. 131; People v. Rogers, 22 Cal.2d 787, 141 P.2d 722; Lisenba v. State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; People v. Bram, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568; Twining v. State of N.J., 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Sections 145, 825, 828, 834, 836, 849, 859, 4000, 4005, 4022, Penal Code. The authorities cited do not support appellant’s contention. In most of the cited cases the petitioner or appellant sought the reversal of a conviction of an extremely ignorant if not youthful person under circumstances where public indignation had been aroused by the crime; or the accused had been subjected by the arresting officers to harsh, third-degree methods; or had been removed from one county to another, deprived of sleep, friends or counsel, and so treated as to defeat even stronger resistance. The most recent of these decisions (McNabb, Anderson and Gros) were based in large measure upon "flagrant" refusal of arresting officers to observe an act of Congress requiring a marshal promptly to take the accused before the nearest commissioner.
It is true that the Penal Code (Sec. 849) of this state requires that upon his arrest a prisoner be taken before the nearest committing magistrate. But section 825 clearly contemplates some delay for the benefit of investigators by allowing two work days before presenting the accused to the magistrate. Section 836 authorizes an arrest without a warrant when the officer has reasonable cause for believing that the arrestee has committed a felony. Surely the language used in neither section contemplates that the officer should close his labors merely upon arriving at a "belief" that his prisoner committed the crime. The entire structure of law enforcement machinery contemplates the reasonable activity of those human agencies who are in a large degree guardians of the security of life and property. It is incumbent upon them to ferret out crimes and bring criminals to justice. While they may not effect confessions by those accused by such treatment as breaks the will of a prisoner, the public welfare requires such officers to exercise a reasonable diligence to collect available evidence from all who appear to have knowledge of the crime. While such diligence may jar the sensibilities of the elite and disarrange the plans of the suspected, yet inquiry must proceed if social order be maintained and wrongs be righted by judicial functioning. The statutory requirements for the safety and humane treatment of suspects or prisoners were not intended as narcotic ministrations for the constabulary or the police. Their purpose is to preserve the liberty of the citizen whose duty should impel him to divulge his full knowledge of a crime. The fact that a confession is made to a police officer while the accused is under arrest, in or out of prison, or is drawn out by his questions, does not necessarily render the confession involuntary. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568.
Moreover, the deprivation of one’s right to due process of law is not an impediment to the fair administration of justice unless the acts alleged to constitute the violation have so terrified the accused or otherwise so frozen his intellectual processes as to impair the exercise of his reason or his will, resulting in a subversive influence upon the judicial investigation. A violation of the right of due process is not involved in a criminal trial unless such violation pollutes the stream of justice. McNabb v. United States, supra. Whether a failure on the part of police strictly to observe the canons of due process has so influenced a trial as to corrupt the final judgment must be determined in each case from its own facts. The reasons for the jealousy with which the courts have guarded the rights of due process of accused persons is best demonstrated in just such cases as those cited by appellant. In each of them a confession to the police was gained by breaking down the will of the accused by third-degree methods of an aggravated character. Quan was an ignorant Chinese surrounded by a group of insistent police of whom he was afraid. Dye was kept secretly in an outlying jail and intermittently questioned for seven days. The Twining case pertains only to the legal effect of a defendant’s failure to testify in response to incriminatory statements made to witnesses. The Chambers case involved a number of ignorant negroes accused of an "atrocious" murder that enraged a community. They were rushed from one county to another, told that the movements were to "escape a mob" [309 U.S. 227, 60 S.Ct. 474, 84 L.Ed. 716], held secretly for seven days and questioned continuously until confessions had been obtained. In White v. Texas [ 310 U.S. 530, 60 S.Ct. 1033, 84 L.Ed. 1342], the accused was "an illiterate farm hand," arrested in the cotton field. For several successive nights he was taken from jail "up in the woods," whipped, threatened not to divulge his treatment, kept away from lawyer and friends and was intimidated at the final questioning by the presence of rangers about two o’clock in the morning. In the case of Ziang the accused was a native of China, having come to New York as a student. Although suffering from a chronic stomach trouble, he was taken to a hotel in Washington and there kept for a week. He was subjected for seven days to continuous quizzing while he was ill and "in such pain that he would have confessed to a capital offense to gain relief." The McNabb boy was an ignorant mountaineer moonshiner; had not passed beyond the fourth grade; was without criminal experience and had never traveled beyond the McNabb settlement. Rogers was a gifted musician accused of patricide. His resistance for two weeks to the confinement and the severe punishment, applied to force his confession, was more than might have been expected from one of his kind. He was assured of release within three months after conviction. "He ‘felt that confessing was the only possible way [to save his] life from an unjust execution.’ " 22 Cal.2d at page 802, 141 P.2d at page 729. The rule adhered to in those cases cannot be appropriately applied to a strongminded, experienced, business man reared and educated in a big city, and especially to one who had dealt with the police and had been convicted of receiving stolen property. Such had been the experience of appellant who exhibited no fear when questioned by the officers. He was neither youthful, ignorant, nor ill. He knew his rights and asserted them at will. He never "confessed" to the theft, but vigorously denied it to the last.
Neither was he abused by the officers. At the time of his detention he was known to have in his possession a part of the loot of a bold theft. The investigation proceeded without show of force or malevolence. The officers appear to have acted solely with the view of identifying the thief. It was their duty to recover the merchandise and to ascertain what knowledge Fox had of the crime. In prosecuting their labors they were not obliged to rest with a voluntary denial of guilt. Having been reassured by one who had confessedly received a part of the booty, it was their duty to pry into his conscience with reasonable diligence. The argument that an admission against interest or a confession made to an investigating officer cannot be used against an accused is unsound. Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262. Arresting officers must be allowed some latitude in investigating felonies, otherwise the public will often be subjected to the brutal rule of skilled criminals who ply their vocation in metropolitan areas. The principle embodied in the 14th Amendment must be preserved as a cherished fortress of freedom, but unless its abuse attains to such extent as to inject into the proof of a crime evidence gained by violating the rights of the accused, the courts are not required to reject evidence gained by extrajudicial inquiry. The mere detention by the arresting officer of an accused without promptly taking him before a committing magistrate may be an offense on the part of the officer, but it does not by any means warrant the rejection of evidence gained from the prisoner by fair treatment. The conduct of a criminal trial under modern conditions cannot be confined within mechanical rules. Each step in the proceeding demands the exercise of "a well-established range of judicial discretion, subject to appropriate review on appeal, in ruling on preliminary questions of fact." Nardone v. United States, 308 U.S. 338, 342, 60 S.Ct. 266, 268, 84 L.Ed. 307. The success of criminal prosecutions and the achievement of substantial justice must depend to a large extent upon the learning, good sense and courage of the trial judge. Id. The courts are not concerned with the practices of the police except in so far as they may be asked to use evidence thereby obtained against the will of the accused. McNabb v. United States, supra. No enlightened court will allow a conviction upon evidence secured under the circumstances disclosed by the decisions cited by appellant. The facts of this case remove it from the class of those condemned for violations of procedural rights under the 14th Amendment.
Testimony of Officers Properly Received.
The third assignment is that in overruling objections to the statements made by Fox to the officers, as they quizzed him while under detention, the court committed prejudicial error. Appellant was at no time mistreated. No promises of reward were made to him; no threats, no menace; no unkindness on the part of the officers. To the inquiries of officers it is the duty of a citizen, if innocent, to disclose his knowledge of any crime. When an investigating officer is called to testify as to the incriminatory statements or confessions of a prisoner it is then the duty of the trial court in the exercise of its discretion to determine in the first instance whether the statements made by the prisoner were free and voluntary. In making such determination a liberal measure of discretion must be allowed. People v. Lehew, 209 Cal. 336, 287 P. 337. "The admissibility of such evidence so largely depends upon the special circumstances connected with the confession that it is difficult, if not impossible to formulate a rule that will comprehend all cases." People v. Siemsen, 153 Cal. 387, 95 P. 863, 866; Hopt v. Utah, 110 U.S. 574, 583, 4 S.Ct. 202, 207, 28 L.Ed. 262. The mere fact that a confession is made to an arresting officer by the accused while under arrest does not render it involuntary. The discretion of the trial judge in admitting it "must be controlled by all of the attendant circumstances." Hopt v. Utah, supra. A reviewing court is in no position to determine that error was committed in admitting the statements of an accused to the police "unless such error appears as a matter of law from the record presented." People v. Lisenba, 14 Cal.2d 403, 421, 94 P.2d 569, 578.
On the trial of a party accused of a felony courts should be motivated by a zeal for justice rather than by a passion for mercy or revenge. While it is elemental that testimony of detectives and officers must be scrutinized, it is also fundamental that a voluntary incriminatory admission or confession of guilt is one of the strongest evidences possible against a prisoner. The record here discloses that appellant was bold and self-assertive throughout his detention. His admission that he had the stolen property then locked in his garage was made only after he had learned that his accomplice had accurately advised the police of appellant’s possession of the booty. He did not ask for his friends; at no time did he request the officers to call in his counsel. In the Lisenba case, supra, the defendant contended that his rights of due process had been violated by the arresting officers (1) by their failure to take him promptly before a magistrate; (2) by not incarcerating him in jail (Secs. 849, 1597, Penal Code); (3) by detaining him incommunicado in a private home for 48 hours where he was subjected to incessant questioning by the officers in successive shifts; (4) by depriving him of rest and sleep during such detention. In the course of the interview one of the officers slapped his face. The court observed that the treatment of which Lisenba complained failed of its objective; that he did not confess until after his accomplice had been arrested and told the story to the officers. His insistence that he suffered from the pain and memory of beatings and vocative abuse assertedly administered to him did not render his confession inadmissible. The judicial inquiry into the crime of Lisenba was not poisoned by the extrajudicial behavior of the investigating officers, although the conduct of the latter was disapproved of by the court.
The behavior of the officers there was akin to the conduct of the police who arrested appellant, except for the fact that Fox was in all interviews with the officers treated with urbanity and respect. The only unkindness to him was his detention and questioning after three o’clock of the Sunday morning after he had divulged all the information he chose to impart. The record is such as to warrant the trial judge in believing that the admissions of Fox were due to his sudden knowledge that Gorberg had divulged the true story of his own participation with Fox in the concealment, sale and delivery of the stolen merchandise and in sharing in the proceeds of the sale. The conduct of the officers under the circumstances presents a practical problem in crime detection. People v. Lisenba, 14 Cal.2d at page 422, 94 P.2d 569. The manner in which the cargo of tobacco was removed from the very purlieus of the house of its possessors; its speedy concealment in a remote quarter of the city; its removal to a more distant storeroom; its immediate sale and delivery to the purchaser by engaging the services of some agents like Gorberg for pay and others like Rabin without pay--these facts demonstrate the practical necessity of officers’ running down substantial clues to crimes which occur in metropolitan centers if there is to be any security for the rights of ownership of property. It is unavoidable that the guilty and those who would protect them should at times suffer some inconvenience at the hands of investigating officers. But proof of such occurrences does not necessarily establish judicial error in the trial of the accused on the merits.
No Error in Rejecting Proposed Instructions.
Pursuing further his contention that his rights of due process were violated, appellant asserts that the rejection of certain of his proposed instructions violated the requirements of the 14th Amendment. He complains of the failure of the court to give to the jury several instructions setting forth the rules under which confessions or statements made to police officers by one accused of crime may be considered by the jury. There was no occasion for instructing the jury that before they could consider any alleged confession of the defendant as evidence against him they "must believe that such alleged confession was freely and voluntarily made, and was not the result of inducement, coercion, intimidation, threats, violence, promises or duress exercised by any officer of the law, or any other person, upon the defendant." No evidence was presented to the court upon which such an instruction could be predicated. The court should have given another requested instruction telling the jury that they could disregard appellant’s statements to the police officers if appellant had been deprived of sleep to the extent that "he was not in that state of mind where his statements were free and voluntary." However, the jury was fully aware of the length of time that appellant had been questioned by the officers and were able to determine whether he had capacity to make and understand the statements alleged to have been made to the officers. Because of the generous proof with respect to the questioning of appellant by the officers we are satisfied that no prejudice was suffered by appellant which resulted in a miscarriage of justice.
Appellant also complains of the failure of the court to give to the jury a requested instruction on the subject of the necessity for corroboration of the testimony of an accomplice. The court gave to the jury the following instruction: "The court instructs the jury that conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence tending to connect the defendant with the commission of the offense. Such corroborative evidence need not tend to establish the precise facts testified to by the accomplice. It is sufficient if such corroborative evidence standing alone tends to connect the defendant with the commission of the crime charged. The testimony of an accomplice may be corroborated by the confession or admission of the defendant." This instruction was correct. People v. Siderius, 29 Cal.App.2d 361, 373, 84 P.2d 545. However, appellant complains of the omission therefrom of the statement that "the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." While the court might well have included the offered matter, yet in view of the abundant corroborating evidence hereinbefore recited, it is clear that appellant could have suffered no prejudice by the omission of the requested sentence.
Finally, appellant contends that he was prejudiced by the court’s refusal to read his proposed instruction with reference to his alibi, to the effect that the time of the offense must be established by the People beyond a reasonable doubt. Such would have been error. It is the guilt of the defendant that must be established. People v. West, 34 Cal.App.2d 55, 59, 60, 93 P.2d 153; People v. Clapp, 61 Cal.App.2d __, 143 P.2d 985; People v. Shimonaka, 16 Cal.App. 117, 125, 116 P. 327; Sections 1096, 1096a, Penal Code. The instruction directing the jury to acquit the defendant if the evidence on the subject of the alibi considered with all the other evidence was sufficient to raise a reasonable doubt as to his guilt was sufficient. People v. Shannon, 28 Cal.App.2d 677, 681, 83 P.2d 302; People v. Addington, 43 Cal.App.2d 591, 594, 111 P.2d 356; People v. McNeese, 40 Cal.App.2d 97, 101, 104 P.2d 370.
The judgment is affirmed.
W. J. WOOD and McCOMB, JJ., concur.