THE PEOPLE, Respondent, v. FRANK LE ROY, Appellant, 192 Cal. 498

WILBUR, C. J. The facts in this action are correctly stated in the opinion written by Mr. Justice Houser, which we adopt, as follows: “Defendant was convicted of the crime of burglary. He appeals from the judgment and from the order of the court denying his motion for a new trial. “It is first argued that the evidence is insufficient to sustain the verdict. There was ample evidence to sustain at the least the following ultimate facts: The person who committed the burglary wore a peculiarly shaped pair of shoes, and that such person had a camp in the river-bed.

A pair of shoes such as was worn by the burglar, as well as several of the stolen articles, were found in a place where defendant had been ‘hobo’ camping in the ‘jungles of a river bottom.’ The tracks of the burglar were followed from the house which was burglarized to a point within fifty feet of defendant’s camp.

When arrested (which was at a time three months after the date of the burglary) defendant was wearing a shirt which was identified as one which had been stolen at the time the burglary was committed. “It was not shown that the shoes which were found in the camp were worn by defendant at any time, nor that they were of the size worn by defendant. However, it is admitted that the shoes were of such a size that defendant might have worn them. On the other hand, the defendant in his testimony did give an explanation of his possession of the shirt.

Those matters, however, were for the consideration of the jury, going to the point whether or not from all the evidence in the case the jury should believe beyond a reasonable doubt that the defendant committed the crime. Defendant’s explanation of his possession of the shirt was undoubtedly considerably weakened by an attack upon his credibility as a witness arising particularly out of the fact that theretofore he had been convicted of a felony on two separate occasions.

While it is true that the mere possession of stolen property, standing by itself, is insufficient evidence upon which a conviction may be sustained, the presence in defendant’s abandoned ‘hobo’ camp of several of the stolen articles, together with the shoes apparently worn by the burglar at the time the offense was committed, and the fact that when the shirt was found in defendant’s possession he refused to tell where he got it, furnished sufficient additional evidence against defendant to justify the jury in reaching the conclusion that defendant was guilty. (People v.

Lang, 142 Cal. 482, 485 [76 Pac. 232].) “Among the articles found in the defendant’s abandoned camp was a watch. This watch was not one of the articles taken in the commission of the offense with which defendant was charged but it was used as a means of connecting defendant with the occupancy of the camp where the other articles were discovered. In this connection a witness, after identifying the watch as being her property, testified as follows: ‘Q. And is there anything inside of the case of the watch that enables you to state that it is your watch ? A. There was. Q. And what is inside of the case there, Mrs.

Proctor? A. When it was taken from it (me) it had “E. Ormsby” engraved on the inside case, which now has been changed. Q. We ask you, Mrs. Proctor, what it has been changed to? A. E. Kemsley. Q. Semsley now, will you say? A. I would say Semsley.’ “Other testimony in the case showed that defendant had called at the postoffice for mail addressed to C. Semsley.

Defendant’s contention is that error was committed by the court in admitting such evidence for the reason that it. insinuated into the minds of the members of the jury the fact that more than one burglary had been committed and the possibility of defendant being guilty thereof. But there was no direct evidence of the commission of any other burglary, or anything to the effect that the watch had been stolen.

The evidence, in substance, was that the engraved name of ‘Ormsby’ thereon had been changed to ‘Semsley.’ ” The purpose of the evidence in regard to the watch as a means of connecting the defendant with the occupancy of the camp was fully accomplished by testimony showing that the watch had been found at the camp and that it contained a name similar to that used by the defendant. The fact that the watch was identified by the witness, Mrs. Proctor, as her watch, and that it had previously had her name engraved therein was thus wholly immaterial so far as the avowed purpose for which the evidence was adduced.

The court erred in admitting this testimony over the objection of the defendant. The next question is whether or not the error of the court was so prejudicial to the rights of the defendant as to result in a miscarriage of justice. The witness stated, “This is my watch.” This would indicate that, notwithstanding its presence in the hobo camp with the name of the defendant engraved thereon and her own name scratched out, that she had never parted with title thereto.

The witness also stated that the watch had been taken from her, and in view of the fact that she stated that it was her watch, and the fact that it was found with the stolen goods belonging to the complaining witness, the clear inference from all the facts and circumstances was that it had been stolen notwithstanding the fact that the witness did not expressly so state. Prom the fact that the watch was stolen, the name of the owner removed and that of the defendant put in its place, the inference would be very clear that the defendant was connected with the crime.

Indeed, if the witness had testified that the watch had been taken from her without her consent, the evidence to connect the defendant with that crime would be nearly as full and complete as the evidence tending to connect him with the crime of which he is convicted with the single exception of the footprints leading from the camp to the place of the burglary, for in one case we have a stolen watch with his name engraved therein, indicating possession, and in the other case we have the actual possession of the stolen shirt.

We cannot escape the conclusion that this evidence was so prejudicial that it probably resulted in the conviction. Under the well-known rule pertaining to criminal cases depending upon circumstantial evidence, it was much easier to account for the possession by the defendant of the stolen shirt three months after it was stolen, upon the hypothesis of his innocence than to account for the possession qf a stolen watch from which the name of the owner had been removed and the name of the thief had been substituted.

Por instance, the defendant was found guilty of going to and entering into the house of the complaining witness with intent to commit the crime of larceny, and the only evidence tending "to show that he went to that house and returned therefrom was the footprints made by shoes found at the camp, which, upon the presumption of innocence which required the jury to accept the view of the circumstances most favorable to the defendant, they might well have assumed were worn by some other member of the group at the camp.

If the defendant did not aid or abet in the commission of the crime, but accepted the shirt, knowing it was stolen, his offense would not be burglary. The evidence tending to support the verdict, while sufficient to sustain that verdict, was, nevertheless, meager. The defendant was laboring under the extreme disadvantage of having to admit on cross-examination that he had been twice convicted of felony, and while this evidence was admissible solely for the purpose of discrediting his testimony, it is manifest that the jury was likely to consider it in weighing the incriminating circumstances proved against him.

Por the error in admitting this testimony the judgment must be reversed. In view of our conclusion it is unnecessary to pass on the other matters presented by the defendant. Judgment reversed. Myers, J., Seawell, J., Lennon, J., and Kerrigan, J., concurred.