248 P. 927 | Cal. Ct. App. | 1926
Defendant was convicted of the crime of burglary in the second degree and sentenced to the state prison. He had previously been convicted under the same information of burglary in the first degree, but this judgment of conviction was reversed and a new trial ordered upon the ground that the evidence was insufficient to support the verdict of first degree burglary for the reason that there was none introduced at the trial tending to show that the store entered was either an inhabited dwelling-house or *457
an inhabited building, or that defendant was armed with a deadly weapon, or that any person was assaulted during the commission of the burglary. (People v. Higbee,
We are of the opinion that this evidence is amply sufficient to support the verdict. [2] Defendants at the trial pleaded once in jeopardy and former acquittal and asked that these special pleas be declared to the jury. The trial court disregarded the request and the jury did not find upon them. This act of the court is assigned as error. There is no merit in the contention. Defendant introduced no evidence in support of the pleas. The burden of establishing them was upon him. It was just as necessary to support the pleas as to interpose them. His failure to do so must be deemed a waiver thereof. (People v. Newell,
[3] Appellant next complains of the giving of an instruction reading as follows: "The evidence in this case tends to show that on the night of January 28th, last year, the prosecuting witness was in the possession of a certain store here in Burlingame, and therein he had merchandise belonging to him, and that during the evening or night, the store was entered by some person, and certain articles of merchandise were stolen and carried away." It is claimed that this instruction virtually states to the jury that a burglary had been committed; that it occurred at night and that a larceny was also committed. We do not think there is any merit in this contention. There was no claim made that a burglary had not been committed. On the contrary, it was conclusively shown that there had been one. There can be no substantial objection to a charge declaring that evidence has been offered tending to prove a certain fact when it is disclosed by the record that the statement is true beyond any possible question. It necessarily follows that the instruction attacked did not constitute error. (People v. Flannelly,
[5] Further complaint is made of the action of the court in refusing to instruct the jury that if they were in doubt as to the legal effects of the facts that they might find a special verdict. There was not error in the refusal to give this instruction as the facts were few and simple and the legal effect of the same, if believed, admitted of no doubt.
[6] O'Connor, one of the participants in the robbery, testified on behalf of the People. He was asked whether or not he had ever been convicted of a felony and he answered that he had. Appellant claims that he should have been permitted to further cross-examine the witness as to what felony or felonies he had been convicted of, in order to test his credibility. The nature of the particular felony he had been convicted of was fully shown, and the trial court did not limit the examination in this particular. There is no merit in this contention. [7] Defendant at the time of his arrest was accused by O'Connor and Clinton in the presence of a police officer with having been a participant in the robbery. He denied the accusation. The officer was permitted to testify to this fact and a motion was made on behalf of the defendant to strike out this testimony. The motion was denied. While it should have been granted, as it was not competent evidence of his guilt, the error was not prejudicial to defendant's rights for the reason that O'Connor testified to this same fact at the trial and defendant took the stand in his own behalf and denied that he had participated in the robbery. Under these circumstances the error was cured. Appellant next claims that the court erroneously refused to strike out certain hearsay evidence of a police officer to the effect that the owner of the store had previously identified certain of the stolen property at a previous trial. The record *460 shows that the trial court interrupted the examination at this point and no answer was given to the question, and no further inquiry was had upon the uncompleted objection.
[8] The further claim is made that the court erred in refusing to allow defendant to show by Dawson why the stolen property was left in his room. No inquiry was had upon the subject either in the direct or cross-examination of this witness. The question was propounded upon the redirect examination and the court did not abuse its discretion in sustaining an objection to the same. No other questions are presented.
The judgment and order denying a new trial are affirmed.
Knight, J., and Cashin, J., concurred.