[Crim. No. 516.

Second Appellate District.

February 1, 1917.]

#### THE PEOPLE, Respondent, v. GEORGE SWEETMAN, Appellant.

Criminal Law—Possession op Stolen Property Unexplained—Effect of Proof—Instruction.—In a prosecution for the crime of burgldry, the defendant is not prejudiced by the giving of an instruction with reference to the possession of stolen property, unexplained, and the effect of such proof, where no evidence was introduced tending to show that the defendant had the property in his possession.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frank R. Willis, Judge.

The facts are stated in the opinion of the court.

Wm. M. Morse, Jr., and S. M. Johnstone, for Appellant.

U. S. Webb, Attorney-General, and Robert M. Clarke, Deputy Attorney-General, for Respondent.

SHAW, J.

The defendant having been convicted of the crime of burglary, appeals from the judgment and an order of court denying his motion for a new trial.

The subject of the larceny was certain plumbing fixtures, consisting of two laundry tubs and a kitchen sink, which had *646been installed in a house at No. 1211 North Mariposa Street, in the city of Los Angeles, which was owned by the prosecuting witness. The evidence, exclusive of a confession made by defendant, without contradiction, shows that the tubs, which were installed upon an uninclosed porch of the house, and the sink installed in the kitchen, the door of which was locked, were, without the owner’s knowledge or consent, by some person unknown to him, taken and removed therefrom between 4:30 o’clock P. M., on June 21st, and 8 o’clock A. M., the next day. The tubs were found installed in a house located at No. 803 North Wilcox Avenue, in the city, the contract for the installation of plumbing fixtures in which had been let to defendant. This evidence was amply sufficient to show the commission of the crime *(People*v. *Wagner,*29 Cal. App. 363, [155 Pac. 649]); hence there is no ground for appellant’s contention that the court erred in admitting evidence of his confession, for the reason that the *corpus delicti*was not established.

Neither does any ground exist for the suggestion that the confession of defendant was procured by promise of reward or immunity. On the contrary, the evidence conclusively shows that defendant freely and voluntarily, and without menace, duress, or promise of any kind, made and subscribed a written confession wherein he stated that he entered the house at about 8 o'clock P. M. and took therefrom the tubs and sink, which he installed in the other house.

The court instructed the jury: “That before an admission or confession of a defendant can be used against him as evidence, it must appear that the statement was made voluntarily, and not under duress, menace, the hope of reward or the fear of punishment. If you find from the evidence that the confession admitted in evidence was made under the promise of reward, or menace, duress, or the fear of punishment, then you must disregard the confession entirely, and unless you find from the evidence, after disregarding the confession, that the defendant committed the offense charged against him, it will be your duty to acquit.” As an abstract proposition of law, the first sentence of the instruction is correct, but it is the province of the court, not the jury, to determine whether or not a confession offered in evidence should be received or rejected. *(People*v. *Cahill,*11 Cal. App. 685, [106 Pac. 115]; *People*v. *Gibson,*28 Cal. App. 334, [152 Pac. 316]; *People*v. *647
      *Barker,*60 Mich. 277, [1 Am. St. Rep. 501, 27 N. W. 539].) Hence it was error to submit to the jury the question as to whether or not the confession was obtained by promise of reward, menace, or duress, and to submit to the jurors the question as to whether or not it should have been admitted in evidence; for, if not voluntarily made, as determined by the court, it was inadmissible. Conceding the instruction to have been erroneous, in no event could it have prejudiced defendant in his substantial rights. On the contrary, the jury might have overruled the court by finding that the confession was extorted from defendant by unfair means, and in such case, following the instruction of the court, disregarded it entirely and acquitted defendant for want of sufficient evidence.

Complaint is also made that the court instructed the jury with reference to the possession by defendant of stolen property, unexplained, and the effect of such proof; the objection to this instruction being that there was no evidence showing that defendant had the stolen property in his possession. If it were conceded there was no occasion for giving the instruction, and that there was no evidence tending to show that defendant had the property in his possession, yet the giving of it could not be prejudicial.

The judgment and order are affirmed.

Conrey, P. J., and James, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 2, 1917, and the following opinion then rendered thereon:

THE COURT.

In denying the petition for a hearing in this court after decision by the district court of appeal, of the second appellate district, we deem it proper to say that our opinion is not to be taken as an approval of that portion of the opinion which holds that the trial court erred in its instructions to the jury relative to the confession of the defendant. (See *People*v. *Thomson,*145 Cal. 717, 725, [79 Pac. 435]; *People*v. *Luis,*158 Cal. 185, 196, [110 Pac. 580]; *People*v. *Profumo,*23 Cal. App. 378, [138 Pac. 109].) The district court of appeal was undoubtedly correct, however, in holding that, assuming the instruction to have been erroneous in the respect referred to, the error wás not prejudicial.