DocketNumber: Docket No. 1455.
Citation Numbers: 255 P. 261, 82 Cal. App. 98, 1927 Cal. App. LEXIS 705
Judges: McLucas
Filed Date: 3/30/1927
Status: Precedential
Modified Date: 10/19/2024
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 100 In this case the information charges the defendant McGill and one Frank McGettigan in count one with the crime of burglary and in count two with the crime of grand larceny.
Defendant McGettigan entered a plea of guilty. Defendant McGill stood trial and was found guilty of the crime of second degree burglary and of the crime of grand larceny. He appeals from the judgment pronouncing sentence and from the order denying his motion for a new trial.
Defendants were employed as window washers of the outside windows on the first floor of Blackstone's store in Los Angeles. On June 30, 1926, they left their apartments about midnight, drove downtown and parked outside the store of the Blackstone Company. Defendant McGettigan testified that both defendants entered the store building on the third floor by way of the fire-escape, went to the fourth floor and there filled some window buckets with silk dresses and lingerie; that he was leaving the building by the fire-escape when he was shot by the night watchman, and that his co-defendant, the appellant McGill, escaped. The night *Page 101 watchman testified that he saw McGettigan and another man enter the building and go into the third floor; that he shot McGettigan, but that the other man escaped before he could identify him. Officer Bain testified that defendant McGill admitted that he had some garments under his arm which he could not get away with and dropped them on the roof near the rear fire-escape. The appellant denies entering the store and denies taking any property. He admits his presence outside the store on the same night the crime was committed, but claims he left before the store was entered.
[1] Appellant's first point is that there was not sufficient identification of the garments admitted in evidence as being the same garments taken from Blackstone's store on the morning of July 1, 1926. The night watchman identified one of the buckets containing the garments by a mark which he had placed thereon, and stated that the buckets were similar to those taken by him from defendant McGettigan at the time of the burglary. The night watchman also identified a mark which he had placed on one of the garments admitted in evidence. The witness Bals, who was the building superintendent, testified that he found twenty-eight silk garments near the rear fire-escape. While he could not say that the garments admitted in evidence were the identical garments found by him, yet he stated they were "similar" garments and "looked like" those taken from the store. The assistant buyer for the Blackstone Company testified that she assisted in buying this merchandise and had handled it every day; that she had examined these garments, first at the police station, afterward at the preliminary hearing, and that the merchandise which she examined on these occasions was the same as that introduced at the trial. We believe the testimony of these witnesses was sufficient identification of the stolen garments to be taken into consideration by the jury along with the other evidence in the case, including the testimony of appellant's co-defendant that both defendants committed the burglary.
[2] Appellant contends that the trial court erred in overruling defendant's objection to the measure of value of the goods in question. The buyer was the only witness who testified as to value, and she stated the retail price under objections of counsel for the defendant. On cross-examination *Page 102 the witness testified that the wholesale price was less forty per cent discount from the retail price. The total value of the goods was in excess of two hundred dollars, whether the wholesale or retail price be used in the computation. It thus becomes immaterial which figure is used in determining the value; in either case the value was sufficient to support the charge of grand larceny.
[3] Appellant urges that the trial court should have sustained his objection to the introduction of testimony as to other offenses than the one under which he was placed on trial. It was stated by the trial court that this testimony was admitted to show intent. It consisted of testimony by the co-defendant that the defendants had six times previously entered the Blackstone store and taken goods therefrom. It further consisted of defendant's own admissions of three such entries which he made to the police officers prior to the trial. In support of his position the defendant argues that where defendant denies the commission of the crime charged, then the question of intent becomes immaterial. However, upon examination of the record, we find that some of this testimony was given without objection and that no motion to strike such testimony was made by the defendant. Appellant's co-defendant testified that the defendants had entered Blackstone's store six times previously and taken merchandise therefrom. No objection was made until the district attorney inquired how many pieces of merchandise were taken. Officer Bain testified, over objection, that the appellant admitted that the defendants entered Blackstone's store on three other occasions and took thirty or forty pieces of merchandise on each occasion, having already made arrangements to dispose of these garments at one dollar apiece. Counsel for defendant onvoir dire elicited from the witness Bain the testimony that appellant said he could produce dresses in excess of the value of ten thousand dollars.
The general rule against the admission of evidence of other crimes is well settled. But certain exceptions to the rule are also well recognized. [4] Generally speaking, such evidence is admissible when it tends to establish intent, or guilty knowledge, motive, a common scheme or plan embracing the commission of two or more crimes so related to *Page 103
each other that proof of one tends to establish the other, when it tends to connect the defendant with the crime charged, or when the other crimes are a part of the res gestae. In the present case the evidence shows that six different acts of larceny and burglary were committed by the same defendants, under the same plan, at the same place and at about the same time, all in pursuance of a plan, system, or scheme to steal from the Blackstone Company and other stores and dispose of the goods at one dollar per garment. [5] Where several crimes are committed as part of one scheme or plan, all of the same general character and tending to the same common end, they may be given in evidence to show the process or motive and design leading up to the particular crime for which the prisoner is being tried, and thus directly tend to show logically that the crime in question was a part of such common scheme. (8 Cal. Jur. 69.) Evidence of a general scheme or plan to steal horses was held properly admitted in People v. Dixon,
[6] Appellant assigns as error the giving of an additional instruction in the absence of defendant's counsel, but while defendant was present. During the deliberations of the jury the following proceedings occurred. We quote from the transcript, pages 122, 123, and 124:
"The Court: In the case of People v. James J. McGill the defendant is present. The people are represented here by counsel, but the attorney for the defendant cannot be found about the building anywhere. We have waited some little time now for him, and we are unable to find him. As I understood it, the jury wish some further instructions in regard to the matter. If the foreman will state —
"The Foreman: If your Honor please, in regard to the first and second degree of the charge of burglary, we don't seem to come to any agreement on that, whether we can bring in on second degree or not. *Page 106
"The Court: Does the district attorney wish to make any concession in the matter?
"Mr. Scheinman: I don't know exactly how to state that — I will stipulate, if the court please, if there is a question of degree on the charge of burglary, that it is second degree burglary. In other words, if the jury believe from the evidence beyond a reasonable doubt that the defendant is guilty of the crime of burglary, the district attorney will stipulate that it is burglary of the second degree, if that is satisfactory to your Honor.
"The Court: In other words, you are willing to stipulate that there is no testimony here which would sustain a verdict of burglary in the first degree?
"Mr. Scheinman: Yes.
"The Court: I might give the instruction on that subject as bearing upon the question of the degree of burglary of which the defendant is guilty, if any. I will give the instruction, as I did before, that you are instructed that every burglary of an inhabited dwelling house or building, committed in the nighttime, and every burglary, whether in the daytime or nighttime, committed by a person armed with a deadly weapon, or who, while in the commission of said burglary, assaults any person, is burglary in the first degree. All other kinds of burglary are of the second degree. The phrase ``nighttime' as herein used, means the period between sunset and sunrise. If you believe from the evidence beyond a reasonable doubt that the defendant did commit the crime of burglary as charged in the information, it shall be your duty, ladies and gentlemen of the jury, to determine the degree of the offense in this case, and to indicate the same in your verdict. I might say that I think there is no proof here whatever that this building which is alleged to have been entered — I think there is no testimony to the effect that it was an inhabited dwelling house. I think there is no testimony here that the defendant was armed with a deadly weapon. I think there is no testimony here that he made any assault upon any person in entering this building, if he did enter it. So I may add, in my judgment, that there is no testimony here which would justify a verdict of burglary in the first degree."
In People v. Mayes,
In the present case no exception was ordered by the court to be entered, but such entry was unnecessary, since the exception was preserved under the provisions of section
[7] Appellant complains that in giving the above instruction the trial court erred in charging the jury as to matters of fact in violation of the provisions of article VI, section 19, of the constitution of the state of California. No authorities are cited by appellant in support of his contention that this instruction violated the constitutional inhibition against commenting on the facts. We find no error in this instruction. [8] It was the duty of the trial court to instruct the jury as a matter of law not to return a verdict of burglary in the first degree where the evidence would not support such verdict. (Pen. Code, sec. 1118;People v. Welch,
It is ordered that the judgment and order denying motion for a new trial be affirmed.
Conrey, P.J., and Houser, J., concurred. *Page 109