190 Cal. App. 2d 206 | Cal. Ct. App. | 1961
Clifford Purvis Andrews and the appellant Skipper were accused of the crimes of grand theft and burglary. Skipper has appealed from a judgment of conviction of petty theft and burglary and from the denial of his motion for a new trial.
The contentions of the appellant relate to the propriety of the admission of certain evidence and of statements made by the assistant district attorney in his arguments to the jury. Pertinent portions of the record will be set forth or summarized herein.
Henry Graham was a coowner of a business in Carpintería
During the course of the trial, certain testimony given by Karl Gordon Wisely was admitted as against Andrews. The jurors were admonished that such evidence was not to be considered “in any way as reflecting upon any possible guilt of Mr. Skipper on the charges on which he is
It is appellant’s contention that “the introduction of the evidence concerning the Wisely theft deprived defendant [appellant] of a fair trial on the ground that the jury could not erase from its mind that Mr. Andrews had used a confederate in the Wisely theft in exactly the same manner that the prosecution argued Mr. Skipper was used in the alleged
Complaint is made by the appellant of the language of the assistant district attorney upon the subject of the Wisely evidence in his opening argument to the jury. Relevant portions thereof are set forth in the margin.
The appellant also asserts that in his closing argument the assistant district attorney was guilty of “prejudicial misconduct when he used the evidence of a prior conviction of appellant, introduced for the sole purpose of impeachment, to show motive for the alleged theft.” On cross-examination, the appellant said that he had been convicted in 1951 and again in 1954 “for the use of Heroin.” The portion of the record which forms the basis for the appellant’s contention is set forth in the margin.
Under the circumstances of this ease, it was proper to find the appellant guilty of both burglary and theft. (See People v. Guarino, 132 Cal.App.2d 554, 559 [282 P.2d 538].) The record discloses no reversible error.
The judgment and the order denying the motion for a new trial are affirmed.
Shinn, P. J., and Vallée, J., concurred.
In addition, in the course of the instructions to the jury after the completion of the introduction of evidence, the court stated, in part, as to the Wisely evidence: “As you were admonished at the time this evidence was received, it is to be received only insofar as it throws any light upon the foregoing questions with respect to the defendant, Andrews, and the defendant, Andrews, alone and with respect to the defendant, Skipper, such evidence is to be treated as though you had never heard it. ’ ’
In his argument to the jury, counsel for Andrews said: “I have discussed it with my client and it is true that on the day in question—I think it was the 27th of June, or maybe it was the 25th—I don’t remember now—in Summerland, he did take the sum of about $190.00. He was caught and he plead guilty to petty theft and he was imprisoned in the County Jail here in Santa Barbara for 90 days. He admitted it in open court, and he has been punished for it; so, when you approach this problem under the limiting instructions that the Court will later give you, you need not argue in your mind that Mr. Andrews has denied this, because he does not deny it.”
i‘In regard to Mr. Andrews, I want to mention these other facts in conclusion here. . . . [Discussion of the Wisely evidence.] And that is highly coincidental with what happened in Graham’s store, because in Graham’s store, Mr. Andrews was in a corner of the store, and when Graham turned around, he had a bottle of wine in his hand; and in Wisely’s store, he had a cake of soap in his hand, that he had also gotten from the far corner. And the man with the paper was used for the same purpose as Mr. Skipper was used, to distract the man in back of the counter from his open cash register, so that Andrews could slip around and get in the cash register—the same situation that Skipper was used for in Graham’s store. It is also coincidental that in the Wisely transaction, the man, the distraeter, the partner, the aider and abettor, was after candy, as he was in Graham’s transaction. Skipper was after candy. In both transactions the candy was farthest away from the cash register. In Wisely’s, it was at the end of the counter in position 3, and the candy was low down so Wisely had to put his hand low down, and in Graham’s store, the same set-up; the candy was at the end of the counter, exactly the same set-up, and the only difference being, in the Graham transaction, Skipper, in addition to getting Graham away from the cash register while the drawer was open—he dropped the coins. . . . But in the Graham situation, they got away until they got to Ventura, but the same method of operation was used in the Wisely transaction as in the Graham transaction. But we do concede that in the Wisely transaction, Mr. Skipper was not with Andrews. Now, we concede that Mr. Andrews and Skipper are not on trial for the Wisely transaction—that is true—and it is true that this evidence was offered for a limited purpose and the Court stated at the time, as he will state it in his instructions, that it is offered for only certain purposes: to show common plan, scheme or design, as what bearing it may have on the intent of these people. Now, when they went into Wisely’s store, they had the intent to steal that money, and we infer that from what happened and because of the similarity between the way Andrews operated in the Wisely transaction and in the Graham transaction—it is a reasonable inference that you can draw that they also had the intent to steal in the Graham store as Andrews stole in the Wisely store. ’ ’
"Mr. Otero has mentioned this narcotic habit, this Heroin habit. Tour common knowledge will tell you that a Heroin habit is an expensive habit. Did they have a §25.00 a day habit or a §50.00 a day habit, and where were they getting the money to satisfy the habit? Mr, McMahon: Mr. McCarthy,- Mr. McCarthy: (Continuing) Do you think they were getting it shooting craps and playing poker? Mr. McMahon: If the Court please, there was no reference at all to Mr. Andrews, with regard to any habit or narcotics. The Court: In his own testimony on the stand, however, it has been brought out as to the prior, has it not? Mr. McCarthy: Tes, your Honor. The Court: And then the comments of Mr. Otero were brought out. Mr. McCarthy: Heroin use. The Court: It is a matter of argument. I think it is a matter of argument. Mr. McCarthy: I can argue that, your Honor, a matter of inference to the jury. Was he satisfying this habit by selling a wedding ring and a wedding band? What a travesty on a wedding ring and a wedding band that is. Or, was he getting his money from shooting craps and gambling, or was he going with his pals, whom he had known in institutions, to prey on the merchants in Carpintería, as he did on the Coastal Liquor Store, in order to satisfy this Heroin habit?”