
    [Crim. No. 1086.
    Third Appellate District.
    August 26, 1929.]
    THE PEOPLE, Respondent, v. J. W. FAIN, Appellant.
    Murle C. Schreck, C. E. O’Neil and George E. Foote for Appellant.
    U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.
   FINCH, P. J.

The defendants, J. W. Fain and Bennie Bridgeman, were charged with the theft of an automobile, a Ford coupe, the property of R. K. Hamada. Bridgeman entered a plea of guilty and Fain one of not guilty. Fain was duly convicted and his motion for a new trial was denied. He has appealed from the judgment and the order denying a new trial. Appellant’s only contention is that the evidence is insufficient to warrant his conviction.

Hamada testified that he parked the automobile on one of the streets of Sacramento at 9 o’clock in the evening of February 5, 1929, and that when he returned at 10 o’clock the same evening the automobile was gone, and that his registration certificate was “on the steering post” in “plain sight, so everybody could see it.”

A police officer of the city of Stockton testified that, in that city, “around 3:30 in the morning” of February 6, 1929, the defendants “were riding along in this Ford coupe and I . . . stopped them. I asked them what they were doing out in that part of town, and they said they were lost. I asked them where they were going, and they said they were going to Los Angeles. ... I asked . . . the driver of the ear . . . what his name was, and he said his name was Turner. Later on he said his name was Bridgeman. . . . I put my flashlight on the certificate in the car, and I saw it was registered to a Japanese by the name of R. K. Hamada, 2125 Fourth Street, Sacramento. ... I asked the driver of the car, Mr. Bridgeman, if the car belonged to him, and Mr. Fain spoke up and says: ‘No, it don’t belong to him, it belongs to his brother.’ ... I asked him if his brother was a Japanese, and he would not answer, so I accused them both of stealing the car, and neither one said anything, so I put them under arrest. ... I took Mr. Fain down to the station with me. ... I tried to get him to tell me where they stole the car, but he wouldn’t do it. He said he didn’t know anything about the car, that he was out getting some cigarettes or something, and he didn’t know anything about the ear being stolen.” The defendant Fain testified that he had served a term in Folsom prison for the crime of stealing an automobile in Los Angeles; that he was released from that.prison January 21, 1929; that during the evening of February 5th he was invited by Bridgeman to ride with him to Stockton, “and I asked him about this car. I says: ‘I didn’t know you owned a car.’ I says: ‘Whose car is it?’ He says: ‘My brother’s ear.’ ” The appellant further testified that he had no information that the automobile was stolen until his arrest.

The jurors were not required to believe the appellant’s explanation. His presence in the stolen automobile, his false statement to the Stockton policeman that the automobile belonged to Bridgeman’s brother and his silence when the policeman accused him of the theft are sufficient to establish his guilt. (People v. Lang, 142 Cal. 482 [76 Pac. 232]; People v. Cole, 141 Cal. 88 [74 Pac. 547]; People v. Hunter, 59 Cal. App. 444 [210 Pac. 968]; People v. Edwards, 79 Cal. App. 514 [249 Pac. 1090].)

The judgment and the order are affirmed.

Thompson (R. L.), J., and Plummer, J., concurred.  