People v. Nicolosi

VANCLIEF, C.

The defendant and Giovanin Lena were, by information, jointly accused of the crime of grand larceny, committed by feloniously stealing and carrying away a trunk and contents thereof, consisting of ladies’ apparel, the property of a Miss Jennie Petty. On a separate trial the defendant was found guilty and sentenced to imprisonment in the state’s prison; and he brings this appeal from the judgment and from an order denying his motion for a new trial.

1. Counsel for appellant contend that the evidence is insufficient to justify the Verdict, in that there was no evidence tending to prove the defendant guilty, except proof that the stolen property was found in his possession. But I think there was other evidence sufficiently corroborative of the inference from possession of the stolen property to justify the verdict. The trunk was found in the possession of defendant and Lena, in a small, rough, ten by fourteen, board shanty, in which they had been living only about four weeks, in the town of Riverside, San Bernardino county, by J. W. Dickson, the marshal, and P. P. Wilson, constable, of that town. The shanty had but one window, and that was darkened by boards nailed on the inside, and a gunny-sack on the outside. The marshal, while searching for the trunk in the shanty, and in the presence of defendant and Lena, discovered something under their bed or bunk covered with a quilt, gum-coat and other old clothing, and asked defendant what it was. Defendant answered, " Oh, nothing. ’ ’ The marshal then pulled off the covering, and discovered two trunks, one of which was Miss Petty’s trunk, and ordered defendant to open it. Defendant said: “It ain’t my trunk. I cannot open it up. I haven’t got any key to the trunk.” Upon examination, the marshal discovered that the lock had been broken, and he opened the trunk, and found therein an envelope addressed as follows: “Mr. L. Nicolosi, No. 105 Upper Main St., Los Angeles, Calif.” Being asked whose name that was, and how it came there, defendant said: “ That is my name. I wrote it and put it there two or three days ago.” Being reminded that he had said he could not open the trunk, and asked to explain, he said nothing. The address on the envelope was that of his brother. Defendant further told the marshal that the trunks were brought there about two weeks before by a man who drove up with a light spring wagon and a gray horse, whom he had never seen before nor since, and who told defendant that he (the stranger) would like to leave those trunks there for a few days, and that he would call for them, and pay for the trouble of keeping them; and thereupon he (defendant) and his partner (Lena) carried the trunks into their cabin. Defendant also said he had not been doing anything since he came to Riverside; that he had come up from Los Angeles to pick oranges. It was proved that Miss Petty’s trunk had been stolen about two weeks before it was found in the possession of defendant and Lena. These circumstances of themselves were sufficient to excite a very strong suspicion of defendant’s guilt, even though it had not been known that Miss Petty or any other person had lost a trunk, and together with the proof that the trunk had been stolen, and found in the possession of the defendant, justified the verdict of the jury: People v. Chambers, 18 Cal. 383; People v. Velarde, 59 Cal. 457.

2. The defendant asked the court to instruct the jury that if the trunk was ‘‘ only found lying in a house or room in which he (defendant) lived jointly with another equally capable of having committed the theft, then no definite presumption of guilt could be made. ’ ’ Had the evidence tended to prove only that the trunk was found in a room occupied by defendant and Lena, without showing any connection or relation between them, or how the trunk came there, perhaps it would have been insufficient to prove possession of the trunk by the defendant, individually or jointly with Lena, in which ease the instruction asked might have been proper. But the evidence is clear, and without conflict, that the trunk was found either solely in possession of defendant, or in the joint possession of defendant and Lena. This was admitted by the defendant, who testified that he and Lena had voluntarily taken it into their room, and kept it there about two weeks. Therefore, the instruction asked was not applicable to the evidence. It falsely assumed that there was evidence by which the jury might have been justified in finding that the trunk “was only found lying in a house or room” occupied jointly by defendant and another, whereas, it was clearly proved that the trunk was not only thus found, but that it had been taken and kept there by the voluntary assistance of the defendant, and was in his possession.

3. While Dickson was testifying for the people, he spoke of and described the other trunk found with Miss Fetty’s trunk under defendant’s bed. Defendant’s attorney objected to “his saying anything in regard to any other trunk than the one described in the complaint, on the ground that it is irrelevant, immaterial and incompetent, and having a tendency to prove the commission of another crime.” It is contended that the court erred in overruling this objection. No evidence was given or offered tending to prove the other trunk had been stolen or lost. It was merely described as one of the things discovered in close proximity to the stolen trunk, as were the quilt, gum-coat, and other old clothes with which the trunks were covered. I think the court did not err in permitting a mere description of all things found with the stolen trunk under the defendant’s bed. I think the order and judgment should be affirmed.

We concur: Haynes, C.; Belcher, C.

PER CURIAM.

For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.