Full opinion text
GIBSON, C. J. A jury found defendant guilty on two counts of unlawfully taking an automobile (Veh. Code, § 10851), five counts of burglary of the second degree (Pen. Code, §§ 459, 460), and one count of grand theft (Pen. Code, §487, subd. 1). The sentences imposed by the court for the taking of automobiles were made concurrent with each other but consecutive With respect to concurrent sentences imposed on the burglary counts. The sentence for grand theft was made consecutive with respect to the other sentences. Defendant has appealed, contending, among other things, that the evidence is insufficient to support Ms convictions and that the court erred in instructing the jury. In regard to one of the counts of unlawfully taking an automobile, it was shown that on September 11, 1960, an automobile owned by Frank Nunley was stolen and was later found by the police, abandoned and in a “stripped” condition, with its convertible top and other accessories missing, as well as personal belongings that had been inside. On September 30, Nunley saw a Nash automobile equipped with a top which he recognized as being the one missing from his car, and he gave the license number to the police, who determined that the Nash was registered in the name of defendant’s wife. When defendant and his wife were questioned on October 5, defendant at first denied having ever owned the Nash but later stated that he had owned it and had sold it, describing the place where the purchaser lived. The police and Nunley went to that location and found the Nash, which was equipped with a convertible top and various other accessories identified by Nunley as the ones taken from his ear. The owner of the Nash told the police that it was equipped in this way when he purchased it from defendant on September 19. The officers went with Nunley to defendant’s residence, placed him under arrest, and, with his consent, searched the garage, which had been locked. They found an automobile seat cover with Nunley’s name on it, as well as eyeglasses and tools which Nunley identified as being his. The search of defendant’s garage disclosed a considerable quantity of equipment and personal property, and some of the items, which the police had reason to believe were recently stolen, were seized by them. After going to headquarters they ascertained that other items seen in the garage answered the description of stolen property, and they returned with a search warrant and took them as well. Among the things found were the engine and the rear axle assembly of a Jaguar automobile (involved in the second count of unlawfully taking an automobile). The engine was the one from a 1950 Jaguar automobile which had been stolen on September 17, 1960, and the axle assembly was of a type used in Jaguar models from 1950 through 1952. The seized property included the following items involved in three of the burglary counts: (1) An adding machine and a Smith-Corona portable typewriter stolen in a burglary on August 9, 1960; (2) a toolbox and tools stolen in a burglary on August 23, I960; (3) a tape recorder and tapes stolen in a burglary on September 29, 1960. Another item found in defendant’s garage was an air compressor stolen late in August 1960 from inside a hospital under construction. The taking of the compressor, which was worth six or seven hundred dollars, formed the basis of the grand theft count as well as one of the burglary counts. There was also evidence (forming the basis of another of the burglary counts) that on the night of September 29, 1960, a putty knife and about five dollars were stolen from a commercial garage, that the office in the garage had been entered through a hole cut in the wall, and that, although the stolen property was not found in defendant’s possession, the inside surface of a piece of the plasterboard cut out of the wall had a fingerprint on it which an expert identified as defendant’s. The police questioned defendant about the property involved in the various counts, telling him it was stolen. He said that he did not want to discuss the situation, that he was in “enough trouble already,” and that the police could not help him. When the police suggested that a woman may have been with defendant when Nunley’s car was stolen and that someone must have helped him in that theft, he replied, “You know my wife wasn’t with me .... I can show you how one man could do it.” In response to a question about the Jaguar engine, defendant said he had gotten it in a junkyard, but he could not or would not name the yard. With respect to the adding machine, typewriter and tape recorder, defendant said he bought them but could not remember where, when, or from whom, or how much he paid. Defendant's wife told the officers he had brought the adding machine home in the middle of the night. The police suggested to defendant that someone must have helped him take the air compressor because it was so heavy, and he replied, “Well, I took it out in three pieces. ’ ’ As far as appears, he offered no explanation to the police regarding his possession of the stolen toolbox and tools. Defendant did not take the stand at the trial, and he did not introduce any evidence as to how the stolen property was acquired or why his fingerprint was found at the scene of one of the burglaries. Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt. (E.g., People v. Citrino, 46 Cal.2d 284, 288-289 [294 P.2d 32]; People v. Thompson, 120 Cal.App.2d 359 [260 P.2d 1019] ; People v. Morris, 124 Cal.App. 402, 404 [12 P.2d 679].) This court stated in People v. Lyons, 50 Cal.2d 245, 258 [324 P.2d 556], “ [Possession of stolen property, accompanied by no explanation, or an unsatisfactory explanation of the possession, or by suspicious circumstances, will justify an inference that the goods were received with knowledge that they had been stolen. The rule is generally applied where the accused is found in possession of the articles soon after they were stolen. ’ ’ (See also People v. Reynolds, 149 Cal.App.2d 290, 294 [308 P.2d 48]; People v. Lopez, 126 Cal.App.2d 274, 278 [271 P.2d 874].) In People v. Citrino, supra, 46 Cal.2d 284, 288-289, after pointing out that corroboration need only be slight and may be furnished by conduct of the defendant tending to show his guilt, we said, ”... and the failure to show that possession was honestly obtained is itself a strong circumstance tending to show the possessor’s guilt of the burglary.” Substantially the same statement is made in a number of other cases, including People v. Russell, 34 Cal.App.2d 665, 669 [94 P.2d 400] [burglary], People v. Golembiewski, 25 Cal.App.2d 115, 117 [76 P.2d 717] [burglary], People v. Taylor, 4 Cal.App.2d 214, 217 [40 P.2d 870] [burglary], and People v. Morris, 124 Cal.App.2d 402, 404 [12 P.2d 679] [burglary], It has frequently been held that possession of recently stolen property together with a false explanation will support a conviction. (E.g., People v. Ransome, 180 Cal.App.2d 140, 146-148 [4 Cal.Rptr. 347] [theft]; People v. Russell, 120 Cal.App. 622, 625-626 [8 P .2d 209] [burglary] ; Peoples. Scott, 66 Cal.App. 200, 203 [225 P. 767] [theft].) A defendant’s silence upon arrest was relied on as corroborative evidence in People v. Wells, 187 Cal.App.2d 324, 331-332 [9 Cal.Rptr. 384] [burglary], where it was said: “The jurors would naturally and reasonably conclude that if he [the defendant] had purchased the property or acquired possession of it honestly he would be swift to declare and explain the circumstances that vindicated his conduct. . . . His silence, when it would have been so easy for him to speak if innocent, is quite persuasive and convincing.” (See also People v. Miller, 45 Cal.App. 494, 496 [188 P.52] [theft].) The great weight of authority in other jurisdictions recognizes that an inference of guilt is permissible where recently stolen property is found in the conscious possession of a defendant and the possession is not explained. (See 101 Am.St.Rep. 481-524; Wigmore on Evidence (3d ed. 1940) vol. 1, §§ 152, 153, pp. 598-600; id., vol. 6, § 1781, pp. 226, 228; id., vol. 9, § 2513, pp. 417-423; 3 Underhill’s Criminal Evidence (5th ed. 1957) §§ 600, 601, 602, pp. 1460-1471; id., § 723, pp. 1683-1687; 56 A.L.R.2d 1360-1365; 12 C.J.S. 717, 736-737; 52 C.J.S. 924 et seq.) The rule may be stated as follows: Where recently stolen property is found in the conscious possession of a defendant who, upon being questioned by the police, gives a false explanation regarding his possession or remains silent under circumstances indicating a consciousness of guilt, an inference of guilt is permissible and it is for the jury to determine whether or not the inference should be drawn in the light of all the evidence. As shown by the California cases cited above, this rule is applicable whether the crime charged is theft, burglary, or knowingly receiving stolen property. (See also 9 Wigmore on Evidence (3d ed. 1940) § 2513, pp. 422-423.) The many decisions which set forth the rule permitting an inference of guilt, including United States Supreme Court eases (Wilson v. United States, 162 U.S. 613, 619-620 [16 S.Ct. 895, 40 L.Ed. 1090]; see McNamara v. Henkel, 226 U.S. 520, 524-525 [33 S.Ct. 146, 57 L.Ed. 330]; Dunlop v. United States, 165 U.S. 486, 502 [17 S.Ct. 375, 41 L.Ed. 799]), are implied authority for its constitutionality. (For an express holding of constitutionality see People v. Kulig, 373 Ill. 102 [25 N.E.2d 73, 74]; cf. State v. Todaro, 131 N.J.L. 430 [37 A.2d 73, 74], upholding a statute providing for a similar rule [app. dism. 323 U.S. 667 [65 S.Ct. 73, 89 L.Ed. 542], citing the Wilson case, supra, and Tot v. United States, 319 U.S. 463 [63 S.Ct. 1241, 87 L.Ed. 1519]].) To say that an inference is permissible under certain circumstances is, of course, to say that those circumstances afford a rational basis for the inference, and inferring one fact from another is consistent with due process if there is a rational connection between the two, (Cf. Tot v. United States, 319 U.S. 463, 467 [63 S.Ct. 1241, 87 L.Ed. 1519].) The view that a person's silence when questioned by the police concerning his possession of recently stolen property may be used against him as indicating a consciousness of guilt or as an admission is in accord with analogous cases involving silence in the face of accusatory statements made by the police. (See People v. Abbott, 47 Cal.2d 362, 373 [303 P.2d 730]; People v. Simmons, 28 Cal.2d 699, 711 et seq. [172 P.2d 18].) Of course, as is true with respect to accusatory statements, admissibility of evidence regarding such silence requires a showing that the circumstances under which the defendant is confronted by the police with the fact of possession were such as to reasonably call for a denial or an explanation. The accused must understand that he is being charged with the commission of a crime as the result of his possession of the stolen property, and he must have a reasonable opportunity to give an explanation. His silence cannot be used against him if it is based on a claim of right to which he is legally entitled. Obviously, application of the rule permitting an inference of guilt in the situation involving pretrial silence upon questioning by the police does not mean that a defendant may be convicted on evidence of possession alone. In such a situation there is not only the incriminating fact of possession of recently stolen property but, in addition, an affirmative showing of consciousness of guilt arising from a different fact, the silence of the accused under circumstances in which an innocent man would ordinarily have spoken out. It should also be emphasized that the rule in no way shifts the burden of proof or destroys the presumption of innocence; the prosecution must still satisfy the jury of a defendant’s guilt beyond a reasonable doubt. The rule does not require conviction but merely permits an inference of guilt if the jury determines one is warranted in the light of all the circumstances, and even though a defendant remains silent throughout and introduces no evidence whatever, he may nevertheless be acquitted. His silence when questioned by the police should not be used against him if it appears that he is acting on the basis of his right not to incriminate himself, and, even where his failure to explain is not based on a matter of right, he will be free later to introduce evidence of reasons for his silence other than conscious- ness of guilt, such as the desire to protect someone else. If he chooses not to be silent and makes a statement by way of explanation which on its face raises a reasonable doubt as to guilt (for example, that he was not aware that the property was on his premises), the burden with respect to the truth or falsity of his statement is not on him but on the prosecution, so that it cannot be treated as untrue unless the prosecution establishes falsity, as by showing that it is not believable in the light of the circumstances surrounding his possession. .Application of the rule in the situation involving silence upon questioning by the police is entirely consistent with decisions which, in construing section 13 of article I of the Constitution, have recognized that a defendant’s failure to testify in explanation of evidence introduced against him may be considered by the jury as tending to indicate the truth of such evidence and the inference to be drawn from it but cannot be used to fill a gap in the prosecution’s case. (See People v. Ashley, 42 Cal.2d 246, 268-269 [267 P.2d 271]; People v. Adamson, 27 Cal.2d 478, 489-490, 492 [165 P.2d 3]; People v. Albertson, 23 Cal.2d 550, 584 et seq. [145 P.2d 7] [concurring opinion]; People v. Talle, 111 Cal.App.2d 650, 663-664 [245 P.2d 633] ; People v. Cox, 102 Cal.App.2d 285, 287 [227 P.2d 290]; People v. Garrison, 80 Cal.App.2d 458, 462 [181 P.2d 738]; People v. Sawaya, 46 Cal.App.2d 466, 469-471 [115 P.2d 1001].) Some of these cases have held that a failure to testify cannot be used to supply the required corroboration of an accomplice’s testimony. However, pretrial silence upon questioning by the police does not stand on the same footing as the failure to testify. As we have seen, where such silence was not based on a claim of right and the other requisites were present, evidence of the silence may be introduced against a defendant to show consciousness of guilt or an admission. Accordingly, it has been held that such silence can serve as corroboration of an accomplice’s testimony. (People v. Watkins, 126 Cal.App.2d 199, 207 [271 P.2d 641] ; People v. Hambright, 113 Cal.App.2d 40, 42 [247 P.2d 607] ; People v. Willmurth, 77 Cal.App.2d 605, 611-616 [176 P.2d 102]; People v. King, 40 Cal.App.2d 137, 140-141 [104 P.2d 521]; People v. Collins, 4 Cal.App.2d 86, 87-88 [40 P.2d 542] ; see People v. Coakley, 108 Cal.App.2d 223, 228 [238 P.2d 633].) The following cases are disapproved insofar as they may be inconsistent with the views expressed above : People v. Luchetti, 119 Cal. 501, 506-507 [51 P. 707]; People v. Abbolt, 101 Cal. 645, 647 [36 P. 129]; People v. Etting, 99 Cal. 577, 578 [34 P. 237]; People v. Velarde, 59 Cal. 457, 463-464; People v. Ah Ki, 20 Cal. 177, 179-180; People v. Chambers, 18 Cal. 382, 383-384; People v. Johnson, 85 Cal.App.2d 240, 244-245 [192 P.2d 483] ; and People v. Haack, 86 Cal.App. 390, 395-400 [260 P. 913], The evidence in the present case is sufficient to support defendant’s convictions. The only count as to which his possession of stolen property was not shown is the one based on the burglary of the garage, and the incriminating evidence on that count consisted of the discovery of his fingerprint on the inside surface of plasterboard cut out of the wall by the burglar. His possession (which could obviously have been found to be conscious possession) of the stolen property involved in the other counts was shown to have taken place within a few days of one of the crimes and within less than two months of all of them, and the character of most, if not all, of the items was such that he could reasonably be expected to remember how he had acquired them so recently. Yet, when questioned by the police, he either attempted explanations which the jury was entitled to reject as false in view of their vagueness and lack of important details, made statements which could be found to constitute admissions, or remained silent under circumstances of the type which could be found to permit use of his silence as reflecting consciousness of guilt. Moreover, his initial denial of ownership of the Nash equipped with parts from Nunley’s car was incriminating, as was the evidence that he carried the stolen adding machine home in the middle of the night. The jury was instructed: “The mere possession of stolen property, however soon after the taking, unexplained by the person having possession, is not sufficient to justify conviction. It is, however, a circumstance to be considered in connection with other evidence in determining the question of innocence or guilt. If you should find from the evidence that a burglary was committed on the premises involved in this case or that a theft occurred and that thereafter the defendant was found in possession, or claimed to be the owner, of property stolen from the burglarized premises, or in the theft, such a fact would be a circumstance tending in some degree to show guilt, although not sufficient, standing alone and unsupported by-other evidence, to warrant your finding him guilty. In addition to proof of possession of such property there must be proof of corroborating circumstances tending of themselves to establish guilt. Such corroborating circumstances may consist of the acts, conduct, falsehoods, if any, or other declarations, if any, of the defendant, and any other proved circumstance tending to show the guilt of the accused. The corroboration of the possession of stolen property need only be slight in order to sustain a conviction. One who is found in the possession of property that was stolen from burglarized premises is bound to explain such possession in order to remove the effect of that fact as a circumstance, to be considered with all other evidence, pointing to his guilt; and if he gives a false account of how he acquired that possession or, having reasonable opportunity to show that his possession was honestly acquired, he refuses or fails to do so, such conduct is a circumstance that tends to show his guilt.” Insofar as the instruction was to the effect that unexplained possession of recently stolen property cannot, without more, warrant conviction, defendant, of course, is not in a position to complain since such an understanding of the law would have been favorable to him. If it be assumed that any part of the instruction might have been construed to mean that such possession could permit an inference of guilt, this, as we have seen, was a correct statement of the law applicable where, as here, in addition to a showing of possession of recently stolen property, it appears that the accused, upon questioning by the police, remained silent under circumstances justifying the conclusion that his silence indicated consciousness of guilt. There can be no question that the instruction complained of was correct to the extent that it dealt with the incriminating effect of false explanations and statements constituting admissions, and such conduct on the part of defendant was shown to be present as to every count relating to possession except the one concerning the recently stolen toolbox, which defendant had in his possession at the same time and place as the recently stolen property involved in the other counts. In the light of the entire record, the instruction, although not worded as clearly as would have been desirable with respect to consideration of defendant’s silence upon questioning by the police, cannot be said to have resulted in a miscarriage of justice. (Cal. Const., art. VI, § 4%.) It was error to impose sentences for both burglary and grand theft upon defendant with respect to the taking of the air compressor from inside a hospital. Section 654 of the Penal Code provides in part, “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other. ’ ’ The principles governing the application of section 654 were clarified by this court in Neal v. State of California, 55 Cal.2d 11, 18 et seq. [9 Cal.Rptr. 607, 357 P.2d 839]. It was there pointed out, upon an analysis of several earlier decisions, that the prohibition of the statute against double punishment applies not only where “one ‘act’ in the ordinary sense” is involved but also where there is a “course of conduct” which violates more than one statute and comprises an indivisible transaction punishable under more than one statute within the meaning of section 654; that the divisibility of a course of conduct depends upon the intent and objective of the defendant; and that if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one. (See also Seiterle v. Superior Court, 57 Cal.2d 397, 400 [20 Cal.Rptr. 1, 369 P.2d 697].) It was held in Neal that, where arson is the means of attempting murder and is merely incidental to the primary objective of committing murder, the defendant cannot be punished for both arson and attempted murder. Even in the absence of a statute such as section 654 recent decisions of the United States Supreme Court,-upon reasoning which, as in Neal, emphasized the intent of the defendant, have held that the Federal Bank Robbery Act should be construed as not permitting sentences for both entering with intent to steal and robbery or for both robbery and receiving stolen money. (Prince v. United States, 352 U.S. 322, 324 et seq. [77 S.Ct. 403, 1 L.Ed.2d 370, 59 A.L.R.2d 940] ; Heflin v. United States, 358 U.S. 415, 419-420 [79 S.Ct. 451, 3 L.Ed.2d 407]; cf. Milanovich v. United States, 365 U.S. 551, 553 et seq. [81 S.Ct. 728, 5 L.Ed.2d 773] [stealing from Naval commissary store and subsequently receiving stolen currency]; United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 220 et seq. [73 S.Ct. 227, 97 L.Ed. 260] [successive violations of Fair Labor Standards Act treated as “a single course of conduct” subject to only one criminal penalty].) These cases are in accord with other recent United States Supreme Court decisions pointing out that, where statutes create more than one crime but are'unclear on the question of multiple punishment, “the Court applies a policy of lenity and adopts the less harsh meaning.” (Ladner v. United States, 358 U.S. 169, 177 et seq. [79 S.Ct. 209, 3 L.Ed.2d 199] ; Bell v. United States, 349 U.S. 81, 83-84 [75 S.Ct. 620, 99 L.Ed. 905].) It is true that the older case of Morgan v. Devine (1915) 237 U.S. 632 [35 S.Ct. 712, 59 L.Ed. 1153], in the absence of a statute like section 654, rejected the concept of a continuing single intent with respect to federal statutes relating to theft of postal funds, but in view of the decisions of the United States Supreme Court discussed above, we should not treat either the Morgan case or the lower federal decisions which follow it as furnishing an indication of what result would be reached by that court under a statute like section 654. On the basis of other out-of-state decisions which have been called to our attention it cannot properly be said that there is a majority rule or a trend of decision with respect to how a statute such as section 654 should be applied. Except for decisions from New York, Arizona, and Utah, none has involved such a statute. The lower court cases in New York seem to be in conflict (compare People v. Savarese (1952) 1 Misc. 2d 305 [114 N.Y.S.2d 816, 835-836], with People v. Zipkin (1952) 202 Misc. 552 [118 N.Y.S.2d 697, 698-699]), and what appears to be the leading case in that state, People ex rel. Maurer v. Jackson, 2 N.Y.2d 259 [159 N.Y.S.2d 203, 140 N.E.2d 282], is consistent with the California rule. The New York court was careful to stress that the “single issue” before it was whether the statute against double punishment was violated by the imposition of “concurrent sentences” (italics in the original), and the decision rests largely on the ground that concurrent sentences can never constitute double punishment. (140 N.E.2d at pp. 284, 286 et seq.) Moreover, there is considerable language in the opinion indicating that whether two crimes are committed with the same or different intent is of great importance. (140 N.E.2d at pp. 285-286.) The Arizona court, in State v. Hutton, 87 Ariz. 176 [349 P.2d 187, 188-189], although reasoning that consecutive sentences for burglary and theft could be imposed under the statute, held that only concurrent sentences should be imposed in the interests of justice. The Utah case of State v. Jones, 13 Utah 2d 35 [368 P.2d 262], which considered a statute like section 654, based its conclusion in part on the authority of a prior Utah decision, Rogerson v. Harris, 111 Utah 330 [178 P.2d 397, 399], without recognizing that the earlier decision had involved a statute which was quite different from the one before us. The evidence, as we have seen, is sufficient to support convictions both of burglary and of grand theft with respect to the taking of the air compressor from the hospital. The inference which the jury was permitted to draw in that regard was that defendant entered the hospital with intent to steal and that the taking of the air compressor was the culmination of that intent. The record contains nothing indicating that he entered the hospital with intent to commit some crime other than theft. In these circumstances the only reasonable conclusion is that the entry of the hospital and the taking of the air compressor were parts of a continuous course of conduct and were motivated by one objective, theft; the burglary, although complete before the theft was committed, was incident to and a means of perpetrating the theft. Thus defendant can be punished for either offense but not for both, and decisions of the District Courts of Appeal subsequent to Neal have held that double punishment is improper in a situation such as the one before us. (People v. Brown, 200 Cal.App.2d 111, 118 [19 Cal.Rptr. 36] ; People v. Dykes, 198 Cal.App.2d 75, 81 [17 Cal.Rptr. 564]; In re Dowding, 188 Cal.App.2d 418, 421-424 [10 Cal.Rptr. 392].) The following cases, which are to the contrary, antedate and are inconsistent with our decision in Neal and are disapproved: People v. Macias, 161 Cal.App.2d 594 [326 P.2d 936], People v. Guarino, 132 Cal.App.2d 554 [282 P.2d 538], People v. White, 115 Cal.App.2d 828 [253 P.2d 108], People v. Finkel, 94 Cal.App.2d 813 [211 P.2d 888], People v. Brain, 75 Cal.App. 109 [241 P. 913], People v. Snyder, 74 Cal.App. 138 [239 P. 705], and People v. Sharp, 58 Cal.App. 637 [209 P. 266]. With respect to the procedure to be followed on appeal where double punishment has been erroneously imposed, it should be stressed that section 654 proscribes double punishment, not double conviction; conduct giving rise to more than one offense within the meaning of the statute may result in initial conviction of both crimes, only one of which, the more serious offense, may be punished. (People v. Chessman, 52 Cal.2d 467, 497 [341 P.2d 679].) The appropriate procedure, therefore, is to eliminate the effect of the judgment as to the lesser offense insofar as the penalty alone is concerned. (See People v. Brown, 200 Cal.App.2d 111, 118 [19 Cal.Rptr. 36].) It is true that there are cases which have, without qualification, reversed the “judgment of conviction” as to the lesser count, thus apparently eliminating the effect of the judgment with respect to conviction as well as punishment. (See e.g., People v. Brown, 49 Cal.2d 577, 593-594 [320 P.2d 5] ; People v. Logan, 41 Cal.2d 279, 291 [260 P.2d 20].) These cases, however, did not discuss whether the terms of section 654 are to be construed as requiring the setting aside of both conviction and punishment. The court in some of them, for example, People v. Brown, supra, 49 Cal.2d 577, 593, was concerned with the danger that the Adult Authority would consider the conviction of the lesser offense in fixing the punishment on the more serious crime. Such action by the Adult Authority would, of course, be improper, and nothing we have said as to the procedure to be followed should be interpreted as permitting it. Of the two offenses involved here, second degree burglary is the one subject to the greater punishment. (Pen. Code, §§ 461, 489.) Accordingly, it is necessary to reverse the judgment insofar as it relates to punishment for grand theft. Defendant’s assertion that several matters other than those discussed above require a reversal of the judgment as a whole is devoid of merit and need not be discussed. The judgment is reversed insofar as it imposes a sentence for grand theft, and in all other respects it is affirmed. Traynor, J., Tobriner, J., and White, J., concurred. Section 13 of Article I of the Constitution provides that in a criminal ease no person shall be compelled to be a witness against himself and that in such a case the defendant's failure to explain or to deny “by his testimony” any evidence or facts in the ease against himself may be commented upon by the court and by counsel and may be considered by the court or the jury. The instruction given to the jury used, with some modifications, the language of former instructions on the same subject in California Jury Instructions, Criminal (rev. ed. 1958), numbers 203 and 235. These instructions were revised in 1962 to omit the thought that unexplained possession however soon after the crime is not sufficient to warrant conviction. Assigned by Chairman oí Judicial Council.
SCHAUER, J., Concurring and Dissenting. I concur in the majority’s formulation of the rule that “Where recently stolen property is found in the conscious possession of a defendant who, upon being questioned by the police, gives a false explanation regarding his possession or remains silent under circumstances indicating a consciousness of guilt, an inference of guilt is permissible and it is for the jury to determine whether or not the inference should be drawn in the light of all the evidence.” (Ante, p. 755.) I must dissent, however, (1) from the holding that Penal Code section 654 precludes sentencing defendant on each of the valid judgments of conviction rendered on Count V (burglary) and Count VI (grand theft) ; and (2) from all that portion of the majority’s discussion which today appears to return applicability of the subject statute to a nebulous confusion which I thought had been finally eliminated when, less than one year ago, we filed People v. Tideman (April 27, 1962) 57 Cal.2d 574, 584-588 [13a, 14, 15, 13b, 16, 17, 13c, 6b] [21 Cal.Rptr. 207, 370 P.2d 1007], The majority apparently feel compelled to reach this holding by the assertion in Neal v. State of California (1960) 55 Cal.2d 11, 19 [22] [9 Cal.Rptr. 607, 357 P.2d 839], that “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and, objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Italics added.) The majority paraphrase this language, characterizing it as one of the “principles” governing the application of section 654 that were “clarified by” the Neal opinion. (Ante, p. 760.) This summary and uncritical disposition of the matter calls to mind the oft-quoted warning of a great jurist: “It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis.” (Holmes, J., dissenting in Hyde v. United States (1912) 225 U.S. 347, 384, 391 [32 S.Ct. 793, 56 L.Ed. 1114, 1132].) On two previous occasions I have attempted to analyze the meaning—or lack of it—of the so-called “intent and objective test” for applying Penal Code section 654, and to show that continued adherence to such a formula can only lead to absurdity. (See my dissenting opinion in Neal v. State of California (1960), supra, 55 Cal.2d 21; and my concurring and dissenting opinion in Seiterle v. Superior Court (1962) 57 Cal.2d 397, 403 [20 Cal.Rptr. 1, 4, 369 P.2d 697, 700].) I do not propose to repeat what I said in those opinions; but a further analysis is imperative when the majority of this court persist in invoking the so-called “intent and objective test” to reach a result which not only does violence to Penal Code section 654 but is wholly and irreconcilably out of step with contemporary American judicial thought. It is not too late for such a reappraisal. A careful reading of the majority opinion in Neal discloses that the above quoted language purporting to adopt the so-called “intent and objective test” was not necessary to the decision in that case. As the majority there viewed the record, the defendant had committed but a single act: his convictions for arson and attempted murder were said to rest “upon defendant’s act of throwing gasoline into the bedroom of Mr. and Mrs. Raymond and igniting it.” (Id. at p. 18 [14] of 55 Cal.2d.) Yet such a case presents no problem in applying Penal Code section 654, for under the terms of that statute a single act may be punished only once. The Neal majority expressly recognize this rule (id. at p. 19 [19]), quoting from People v. Knowles (1950) 35 Cal.2d 175,187 [14] [217 P.2d 1] : “If only a single act is charged as the basis of the multiple convictions, only one conviction can be affirmed, notwithstanding that the offenses are not necessarily included offenses.” As Justice (now Circuit Judge) Duniway, speaking for a unanimous court, observed shortly after Neal was handed down, “We think that the case could have rested upon that ground alone.” (People v. Fields (1961) 190 Cal.App.2d 515, 517 [1] [12 Cal.Rptr. 249].) Under the majority’s view of the facts in Neal, section 654 by its clear language was applicable and in that aspect the case was controlled by ample precedent. There was therefore no need to go on to discuss what rule might be invoked in an entirely different class of cases, i.e., those involving not a single act—the only situation embraced by the language of the code section—but a “course of criminal conduct” encompassing multiple acts; such acts being connected not in a single crime but only in the multifarious plan of the criminal for the commission of divers crimes requiring separate acts (see e.g., In re Chapman (1954) 43 Cal.2d 385, 389 [3] - 390 [6] [273 P.2d 817]; People v. Slobodion (1948) 31 Cal.2d 555, 561-563 [6] [191 P.2d 1]). It is elementary that a case is authority for only those propositions of law which are necessary to the decision. At the outset I address one question to the majority, which should have a direct answer: Does the conviction and punishment, or trial and acquittal, of a defendant for second degree burglary, under circumstances identical with those here extant, through operation of Penal Code section 654 bar subsequent prosecution, conviction and punishment of that defendant for murder when it is discovered that murder was committed by him, and that the homicide as well as grand theft was included in his “intent and objective” when he made the burglarious entry? (Concealment of the homicide until after sentence or acquittal for the lesser offense was of course included in the “intent and objective.”) If we respect logic the answer necessarily implied by the majority’s holding is affirmative. The portion of section 654 relied on by the majority reads “An act . . . made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no ease can it be punished under more than one; . . .” The section further provides that “an acquittal or conviction and sentence under either one [of the applicable sections] bars a prosecution for the same act . . . under any other.” (Italics added.) Manifestly an acquittal is the full equivalent of conviction and sentence as a bar to further prosecution. Since the majority hold that the burglary and grand theft of which defendant has been convicted constitute but one act within the operation of section 654 it indubitably follows that if the defendant had first been accused, and separately tried for and acquitted, of burglary he could not thereafter be prosecuted for the grand theft (however conclusive the proof) for “an acquittal . . . under either one [of the applicable sections] bars a prosecution for the same act . . . under any other.” The language and applicability of the section are equally clear in both cases. It is also equally clear, therefore, that if punishment of the defendant for grand theft is precluded if he is punished for burglary then prosecution for murder is barred if previously he has been convicted and punished for, or acquitted of, either the burglary or the grand theft. Responsibility for this grotesque result rests on the Neal dictum and today’s application of that dictum, not on the act of the Legislature. Section 654 unmistakably speaks in the singular of “An act or omission which is made punishable in different ways by different provisions” of the Penal Code. It does not speak in the plural of acts or omissions which independently constitute different crimes and which as such are made punishable in different ways by different provisions of the code. The real vice of the majority holding lies in confusing the word “act” (or “omission”) with “the intent and objective of the actor.” Elaborating such confusion the majority in effect add to section 654 a provision so that as applied here it reads, “An act... made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; furthermore, if any such act. .. is one of a series of acts constituting separate crimes punishable in different ways by different provisions of this code, but all of which acts are a part of ‘a course of criminal conduct’ included in ‘the intent and objective of the actor’ the defendant may be punished for any one of such offenses but not for more than one.” (Italics added.) The inevitable effect of this gratuitous ruling will be to create a bargain era for criminals: any number of crimes can be committed for the price of one, provided only that all be included in “the intent and objective of the actor.” The so-called “intent and objective test” compounds any inherent difficulties of the situation by grievously misdirecting the trial court’s attention. By its terms section 654 (ante, fn. 1) prohibits double punishment for the same “act or omission,” rather than for a series of separate and distinct acts assertedly inspired by one “objective.” It is true that we have taken the word “act” as used in section 654 to mean something more than simply each physical movement of the criminal, and have recognized that it may in legal contemplation also refer to instances “where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.” (People v. Brown (1958) 49 Cal.2d 577, 591 [13] [320 P.2d 5].) The solution to the latter problem, however, is to be found not in the facile invocation of an all-embracing formula, but in a close analysis of the acts involved in the particular ease. “Where the question is whether a transaction is divisible or indivisible, each ease must be resolved on its facts.” (People v. Brown (1958), supra.) The factual determination to be made by the trial court is, in obedience to the terms of the statute, “whether a separate and distinct act can be established as the basis of each conviction, or whether a single act has been so committed that more than one statute has been violated.” (People v. Knowles (1950), supra, 35 Cal.2d 175, 187 [14].) Further sharpening the latter distinction, we explained in In re Chapman (1954), supra, 43 Cal.2d 385, 390 [7], that “It is only when the two offenses are committed by the same act or when that act is essential to both that they may not both be punished.” (Italics added.) An identical rule has been adopted by the highest courts of New York in applying their counterpart to our Penal Code section 654: in the leading case of People ex rel. Maurer v. Jackson (1957) 2 N.Y.2d 259, 264 [159 N.Y.S.2d 203, 206 [2, 3] 140 N.E.2d 282], the Court of Appeals declared (citing our decision in In re Chapman (1954), supra) that double punishment would be prohibited “if there were an act which itself violated one statute and was a material element of the violation of another” (italics added); and in People v. Oliver (1957) 4 App.Div.2d 28 [163 N.Y.S.2d 235, 241 [10]], affd. (1958) 3 N.Y.2d 684 [171 N.Y.S.2d 811, 148 N.E.2d 874]], the court expressed the view that only one punishment could be imposed where an act of assault “was an essential ingredient of the crime of burglary” as pleaded and proved in that ease. (Italics added.) These are not infallible criteria—it is self-delusion to believe that such criteria may exist in the law—but broad guidelines which have on the whole been observed with good sense and results fair to all parties. In attempting to apply the so-called “intent and objective test,” however, the attention of the trial court is in each instance distracted from the factual analysis necessary to achieve the purpose of section 654, and instead becomes enmeshed in a post hoc speculation as to the scope of the criminal’s “objective.” But in many eases the latter will have been ill-defined even in the criminal’s own mind, especially with regard to such matters as sudden interruptions by third parties and alternative means of perpetration, escape, or concealment. The application of the so-called “intent and objective test” is apparently a game that any number can play. Prior to Neal there were, it is true, eases in which this court reviewed the record on the question of double punishment and concluded, contrary to the implied determination of the trial court, that the evidence showed only a single punishable act or an indivisible transaction. (See e.g., People v. Brown (1958), supra, 49 Cal.2d 577, 590-591 [13] ; People v. Logan (1953) 41 Cal.2d 279, 290 [11] [260 P.2d 20] ; People v. Knowles (1950), supra, 35 Cal.2d 175, 186 [13a] ; People v. Kehoe (1949) 33 Cal.2d 711, 715 [1] [204 P.2d 321].) Since Neal, however, the District Courts of Appeal have multiplied manyfold the instances in which one or more convictions have been set aside on appeal for asserted violation of Penal Code section 654. A study of the opinions discloses that the Neal dictum has seemingly been interpreted as license to indulge at the appellate level in unbridled speculation as to the scope and content of the criminal’s “objective.” No longer is the evidence on the issue of double punishment viewed in the light most favorable to the express or implied finding of the trier of fact. That salutary principle of appellate review has, in many of these cases, given way to flights of conjecture and tenuous distinctions having but a remote connection with the record. One or two examples will suffice. In the pre-Neal ease of People v. O’Farrell (1958) 161 Cal.App.2d 13 [325 P.2d 1002], the defendant and two accomplices, armed with burglar’s tools and a pistol, broke into a private club between 3 and 4 a. m. They were interrupted in their endeavors by the presence of a night janitor and by the subsequent arrival, one after another, of four other club employes. Each employe was detained at gunpoint, marched to a restroom, and tied up. The criminals forced open a safe and escaped with its contents and with the wallet of one of the employes. The defendant was convicted of burglary, kidnapping for the purpose of robbery, and armed robbery; the convictions were affirmed on appeal. In rejecting the contention that section 654 prohibited separate punishments for kidnapping and robbery, the reviewing court held that under proper instructions the jury found these crimes to be “independent” and that “there is adequate support for its finding.” (Id. at p. 22 [4b].) In the post-Neal ease of People v. Velarde (1962) 201 Cal.App.2d 231, 233 [2] [19 Cal.Rptr. 832], the defendant and an accomplice forced the owners of a store to go at gunpoint into a back room, bound them, and took money from one and from the cash register. Quoting the so-called “intent and objective test” from Neal, the appellate court held that convictions of robbery and kidnapping for the purpose of robbery constituted double punishment in violation of Penal Code section 654. The court distinguished the O’Farrell case on the ground that it “involved a burglarious entrance for the purpose of theft. The unexpected events occurring after the entrance resulted in kidnapping and other crimes which were not a part of the original intent. Each new and different purpose occurred when the defendants unexpectedly and at separate times discovered five different employees under different circumstances. Each discovery led to separate dealings with each person by defendants and none of the acts done was a part of the original plan, each being separate and divisible from the others.” (Italics added.) By such untrammelled speculation the O’Farr ell case was forced into the Neal mold. Yet shortly afterwards in Downs v. State of California (1962) 202 Cal.App.2d 609, 614-615 [10] [20 Cal.Rptr. 922], on facts apparently indistinguishable from O’Farrell, it was held that an armed burglar who held up and bound at gunpoint two intruding night janitors could not be convicted of both burglary and robbery. Rejecting a contention that “the trier of facts could well have found that the petitioner’s original intent was to enter to commit theft and that the intent to commit robbery originated in his mind after the completion of the first offense,” the appellate court reinterpreted the evidence and stated, “Regardless of the wording of the information, petitioner entered the telephone company building with the single purpose to rifle its safe, hoping, no doubt, that this could be accomplished without interference, but prepared for that event by carrying a gun which he intended to and did threateningly use to consummate the crime. To urge that these gun-toting miscreants had limited their original object to safe-cracking only, upon the unlikely assumption that nightly janitorial service was not performed in the telephone company building is unrealistic and unsupported by the record.” (Italics added.) Were the gun-toting miscreants in O’Farrell any less “prepared”? Finally, it bears emphasis that similar speculation has been resorted to in an effort to uphold multiple convictions in the face of the Neal dictum. It is, obviously, a sword that cuts both ways. In People v. Fields (1961), supra, 190 Cal.App.2d 515, the evidence showed that the defendant and an accomplice drove a truck alongside a young girl and forcibly seized her, dragging her into the cab. She was placed between the two men and told that she was “going for a ride.” They drove for 20 or 30 minutes away from the built-up area where the girl was seized, then dragged her from the truck, knocked her down, and raped her in turn. The defendant contended that under such authorities as People v. Wein (1958) 50 Cal.2d 383, 409-410 [42] [326 P.2d 457], and People v. Chessman (1951) 38 Cal.2d 166, 193 [33-35] [238 P.2d 1001], he could not be punished more than once for this course of conduct, as the kidnapping was incidental to the rape. The District Court of Appeal, nevertheless, speculated (id. at p. 518 [1]) that “we think that the trier of fact could well have found that the course of conduct was divisible; that the seizure and asportation of the victim, which lasted for half an hour or more, and was interrupted by a stop to buy some beer, was not, initially, with an intent to commit forcible rape, and that that intent arose in defendant’s mind a considerable time after the kidnapping. Defendant may well have begun by hoping that, with the aid of beer, he could persuade the victim to indulge his desires voluntarily. He may not, at the start, have intended to have sexual relations with her at all.” (Italics added.) On this basis the court affirmed a judgment imposing, inter alia, consecutive sentences for kidnapping and rape. Such legal legerdemain results neither in the fair and impartial administration of criminal justice nor in public respect for the judicial process. Before we finally commit ourselves to the vagaries of application and the arbitrary outcome of the so-called “intent and objective test,” we would be well advised to consider the experience of other courts in this matter. The majority in Neal apparently took their formulation of this “test” from a suggestion of a New York inferior court judge in People v. Savarese (1952) 1 Misc. 2d 305 [114 N.Y.S. 2d 816, 835-836 [15]] (cited in Neal at p. 19 [18] of 55 Cal. 2d). That decision, however, has been criticized in the courts of New York (People v. Zipkin (1952) 202 Misc. 552 [118 N.Y.S.2d 697, 698-699]), and no subsequent decision of the New York Court of Appeals has been found adopting the suggested rule. New York has a statute materially similar to Penal Code section 654 and upon which our provision was originally based (N.Y. Penal Law, § 1938) ; yet the highest court of that state continues to interpret and apply it in the light of the principles summarized in People ex rel. Maurer v. Jackson (1957), supra, 2 N.Y.2d 259, 264 [159 N.Y.S.2d 203, 206 [2, 3] ] : “It is clear that if separate and distinct acts were committed, and that they violated more than one section of the Penal Law, punishment for each of them would be proper although they arose out of a single transaction. [Citations.] It is also not open to dispute that if there were merely a single inseparable aet violative of more than one statute, or if there were an aet which itself violated one statute and was a material element of the violation of another, there would have to be single punishment.” (Italics in original.) The majority assert, nevertheless, that the Jackson case “is consistent with the California [meaning, presumably, the Neal] rule.” (Ante, p. 761.) The contrary appears from the language of the opinion itself. The decision in Jackson rested upon alternative grounds: one was the holding that the imposition of concurrent sentences did not constitute double punishment under New York law; the other—distinct from the first and itself independently sufficient—was the holding that the double punishment statute (N.Y. Pen. Law, § 1938) was inapplicable in any event because the defendant’s two convictions were based on separate and distinct acts. The latter holding was reached in response to the following issue: “Assuming that the robbery and the assault occurred at about the same time, the amicus nevertheless maintains that the separate sentences were proper here, and we give that first consideration.” (Id. at p. 206 [2, 3] of 159 N.Y.S.2d.) While the majority find language in the opinion “indicating” that “whether two crimes are committed with the same or different intent is of great importance” (ante, p. 761), the fact remains that the New York court resolved the issue of the applicability of the double punishment statute by directing its attention to the acts committed ■ by the defendant. Thus the court reasoned (id. at p. 207 [2, 3]) that “In the case now before us the meager record will not permit us to determine precisely the acts of this defendant, e.g., whether or not the attempted robbery was incomplete before he discharged his revolver in his attempt to kill Richter, or how much time if any elapsed between those separate acts. Only the indictment may guide us as to the acts constituting the crimes. From the plea of guilt thereto, we know that defendant admitted not only the act of attempting to rob Richter and the assault incidental thereto, i.e., with intent to commit that felony, but also a separate act of ‘aiming and discharging a loaded pistol’ at Richter ‘with intent to kill’ him.” (Italics added.) The court concluded (id. at p. 208 [2, 3]) that “We recognize that section 1938 is not by its terms limited to included crimes, although it is clear that the statute will there apply; if, however, the acts are separable, it will not apply. Here, one single act is not the basis of the two charges; they were separable and distinct and involved two different kinds of conduct, even though arising out of the same transaction.” (Italics added.) This is the language that we used in In re Chapman (1954), supra, 43 Cal.2d 385, 389 [6] - 390 [7], cited and discussed by the New York court (at pp. 206-207 [2, 3] of 159 N.Y.S.2d). Similarly, in a case where a defendant was convicted and given consecutive sentences on one count of attempted burglary and a second count of possession of burglar’s tools, both offenses apparently growing out of the same course of criminal conduct, the trial court denied a writ of error coram nobis sought on the ground that the defendant had been doubly punished for the same act. In the Court of Appeals the defendant argued that ‘‘acquisition or the obtaining of possession of burglar’s tools constitutes nothing more than a step or preparation in furtherance of an intent to commit a burglary and, . . . the act of possession, occurring simultaneously with the attempt, in accord and in line with the predominant intent, which is burglary, may be used as a basis for prosecution and punishment for one or the other, but not for both.” (Italics added.) This is Neal language; in a memorandum opinion, however, the Court of Appeals affirmed the order denying relief. (People v. Cassell (1959) 6 N.Y.2d 762 [186 N.Y.S.2d 661, 662, 159 N.E.2d 206].) And even after the appearance of Neal the courts of New York have continued to direct their attention to whether a separate and distinct act can be established as the basis of each count of a multiple conviction, and have refused to invoke the so-called “intent and objective test” suggested in Savarese. (See e.g., People v. McCall (1962) 16 App.Div.2d 313 [228 N.Y.S.2d 52, 57 [3]]; People v. La Vallee (1961) 15 App.Div.2d 611 [222 N.Y.S.2d 462, 464 [1, 2]].) We have in Neal, therefore, the curious spectacle of a majority of this court—in a case, it bears remembering, where (on the subject issue) it was not necessary to do more than apply existing law—seizing upon a suggestion of a New York inferior court judge which the highest courts of that same jurisdiction have repeatedly declined to accept. If the courts of New York (and, as hereinafter will be shown, of other sister jurisdictions as well) have by implication rejected the so-called “intent and objective test,” the United States Supreme Court has rejected it expressly. In Munson v. McClaughry (8 Cir 1912) 198 F. 72 [42 L.R.A. N.S. 302], the defendant had been convicted and given consecutive sentences on one count of breaking and entering a post office building with intent to commit larceny and a second count of larceny committed after such entry; in holding that the defendant could be punished but once for these offenses the Eighth Circuit Court of Appeals reasoned that “A criminal intent to commit larceny of property of the government is an indispensable element of each of the offenses of which the petitioner was convicted, and there can be no doubt that where one attempts to break into or breaks into a post office building with intent to commit larceny therein, and at the same time commits the larceny, his criminal intent is one, and it inspires his entire transaction, which is itself in reality but a single continuing act.” (Id. at p. 74.) This is Neal language; yet shortly thereafter the United States Supreme Court held in an identical case that the imposition of consecutive sentences for such offenses was proper. (Morgan v. Devine (1915) 237 U.S. 632 [35 S.Ct. 712, 59 L.Ed. 1153].) A district court judgment that relied on Munson was reversed, and Munson and a similar Ninth Circuit decision were overruled. The high court, in a unanimous opinion prepared by Mr. Justice Day, quoted the language from Munson hereinabove set forth, and rejected its reasoning with the observation (id. at p. 640) : “But the test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent” (italics added). The majority attempt to overcome the effect of the Morgan decision by pointing out that there is no federal statute analogous to our Penal Code section 654. This is obvious, and I do not cite Morgan as direct authority but rather for the persuasive effect of the language of a distinguished Justice of our highest court. Yet the majority, on their part, rely on such cases as Prince v. United States (1957) 352 U.S. 322 [77 S.Ct. 403, 1 L.Ed.2d 370, 59 A.L.R.2d 940], and Heflin v. United States (1959) 358 U.S. 415 [79 S.Ct. 451, 3 L.Ed.2d 407], and imply that those decisions have somehow weakened the force of Morgan v. Devine. This is demonstrably erroneous, as the cases are easily distinguishable. In Prince, for example, where the decision turned on the construction of a statute different from that in issue in Morgan v. Devine, the court carefully limited its holding by stressing that “we are dealing with a unique statute of limited purpose .... It can and should be differentiated from similar problems in this general field raised under other statutes. The question of interpretation is a narrow one, and our decision should be correspondingly narrow.” (Prince v. United States (1957) supra, 352 U.S. 322, 325.) Indeed, on this ground the court itself distinguished the Prince case from Morgan v. Devine. (Id. at p. 328, fn. 9.) The Morgan rule is still living law. It has consistently been followed in the federal circuit courts (see e.g., Clark v. United States (4th Cir. 1959) 267 F.2d 99, 101 [1] ; Hamilton v. United States (5th Cir. 1958) 253 F.2d 421, 422 [2]; Herndon v. United States (4th Cir. 1953) 207 F.2d 412 [1, 2] ; United States v. Lynch (7th Cir. 1947) 159 F.2d 198, 199 [3] ; Doss v. United States (5th Cir. 1946) 158 F.2d 95, affirming United States v. Doss (W.D. La. 1946) 66 F.Supp. 243, 244-245) and, as just noted, it has recently been recognized by the United States Supreme Court itself. The fact that such distinguished courts have rejected the so-called “intent and objective test” should not be lightly disregarded. It should compel us, rather, to reconsider our hasty and unnecessary adoption of that “test” in Neal, and to strike it from our jurisprudence before further damage is done. The majority opinion in the case at bench illustrates all too well the errors that will result from continued reliance on the Neal formula. In applying the “test” the majority first purport to define the scope and content of defendant’s “objective.” But the record, as is so often true, is devoid of evidence directed to or even remotely bearing on such a question. Accordingly, t