190 P. 473 | Cal. Ct. App. | 1920
Defendant appeals from a judgment of conviction had upon an information wherein he was charged specifically with the commission of the crime of burglary in the first degree.
The subject of the theft was a quantity of liquor, consisting of wine and whisky contained in bottles and demijohns, taken from the wine cellar, the door of which was locked, which cellar was situated in the basement of a residence owned by Mr. Gould, entry to which was had by the breaking of a window and the lock on the door of the wine cellar.
[1] One of the essential elements of the crime charged is that it was committed in the night-time, which, in this case, was the time between the hour of sunset at 4:54 P. M. on December 2d, and the hour of sunrise at 6:46 A. M. on December 3d.
Evidence of statements made by the defendant wherein he admitted his participation in the crime, which, he stated, was committed between 10 and 11 o'clock P. M. on the night of December 2d, was received over defendant's objection, *226
and this ruling is assigned as error. His contention is that the reception thereof was not preceded by proof of thecorpus delicti, namely, that the crime was committed in the night-time, and without which the evidence was not admissible. (People v. Vertrees,
[2] In defining burglary, the court, in its instruction, used the language of section
The court instructed the jury that "the information charges burglary in the first degree, and before you can convict the defendant you must be satisfied from the evidence to a moral certainty and beyond a reasonable doubt that he is guilty as charged in the information, to wit, of burglary in the first degree, committed at the place charged in the information and between sunset on December 2, 1919, and sunrise on December 3, 1919. You cannot in this case render a verdict of burglary in the second degree." It would be difficult to conceive of an instruction prepared with greater care, and having for its purpose the protection of defendant's rights, than the one quoted; and it is impossible to understand, even in the light of appellant's argument, any ground whatsoever for the attack thereon.
Other alleged errors predicated upon rulings of the court in permitting the district attorney, over defendant's objection, to ask leading questions of one witness, and its rulings in admitting hearsay testimony as to ownership of the house where the crime was committed, and also error predicated *228 upon assignments of misconduct of the district attorney in his argument of the case to the jury, are not of sufficient merit to warrant consideration.
As a whole, the character of the evidence presented by the record is such that the jury could not properly have reached a verdict other than that rendered, and no errors are shown which could possibly have resulted in a miscarriage of justice. (Sec. 4 1/2, art. VI, Const.)
The judgment is affirmed.
Conrey, P. J., and James, J., concurred.