Appellants Eduardo and Paula Valenzuela appeal their convictions for burglary, enumerating as error below the refusal to suppress the evidence; the sufficiency of the evidеnce to prove defendants were in actual or constructive possession of the stolen goods; the denial of a mistrial based on the district attorney’s statements in argument that defendаnts, who presented no evidence, had given no explanation of their recent possession of stolen goods; and the insufficiency of the evidence positively identifying the stolen goоds. Held:
1. The trial court’s refusal to suppress the evidence in this case *248 was not error. The evidence shows that following a series of burglaries in the community, the police had information from a rеliable source that at least some items stolen in a particular burglary could be found at a certain house. The officers knew who.owned, or rented, the house; they went to the locаtion intending to inquire about a certain antique clock and other items and to stake out the premises and keep them under surveillance if they were unsuccessful in gaining consent or grounds to sеarch. Appellant Eduardo Valenzuela met the officers at the door. They told him they had heard he had an antique clock and some silver for sale, and when he answered that he did not, the officer asked Valenzuela whether he minded if they looked around. He then advised them it would “be alright” if they did so. The officers went into the house and back to the kitchen, where they saw on the floor two pillowcases seemingly stuffed with silver and other bulky items (pillowcases had been among some of the items stolen). The officers immediately emptied the pillowcases, which did contain numerous items, including silver, guns, jewelry and rings, which were consistent with the type items stolen in recent burglaries and some of which the officer believed belonged to at least one of the burglary victims. At this pоint the officers arrested appellant Eduardo Valenzuela. Thereafter the police proceeded to make a thorough search of the entire house; they found in the сloset of a basement bedroom two ski-suits, and found certain liquor bottles in the kitchen, the theft of which items, the appellants were convicted in this case.
Appellants contend the evidence should be suppressed because the officers requested and received permission only to “look around” and did not specifically ask consent to “search”; because the officers expanded the scope of the search beyond what was permissible; and because Eduardo Valenzuela did not have the requisite authority to consent to a warrantless search since he and his wife were only visiting while his sister, the lessee, was in Florida. None of these arguments have merit. Appellant contends that asking permission to look around for an antiquе clock is not the same as asking to search an entire house. We will not agree that when appellant told the police officers they could “look” around the house he could not have known they would perform a search. This is not a case where the officers got specific consent to do one particular thing but instead did another or made an additionаl search (see, e. g.,
Love v. State,
2. Appellant contends there was insufficient evidence to convict, in that the state failed to prove they were in actual or constructive possession of the snowsuits. We disagree. At the trial of the case one of the officers testified that in his opinion two othеr women lived in the house; that one of the women had told him that the bedroom where the snowsuits were found in the closet was her bedroom; and that Eddie Valenzuela had told him that the house was his sister’s аnd that she and the other woman were in Florida. No one testified for the defense in the case. The evidence showed that while others might have lived in the house, and there was hearsay evidence that another person occupied the bedroom where the snowsuits were found, appellants were the sole occupants of the house at the time of the search.
Tamez v. State,
3. In their third enumeration of error, appellants contend the trial court should have granted a mistrial because of improper comments made by the distriсt attorney. During the state’s opening and closing arguments, the district attorney more than once, and over objection, pointed out that “these defendants made no explanation as to how they came into possession of this property belonging to [the victims].” Code Ann. § 27-405 provides: “The failure of a defendant to testify shall create no presumption against him, and no commеnt shall be made because of such failure.” Such an improper comment is one where the prosecutor uses the defendant’s silence to argue his guilt, see
Browning v. State,
4. Finally, the defendant argues there was insufficient evidence to sustain a conviction for burglary in that the items introduced could not be positively identified as the same articles stolen from the victims’ residence. We reject this contention. The snowsuits were positively identified by the victims as being their snowsuits which were stolen. The victims described the liquor stolen from their house as to particular brand, size of bottle, and amount missing from each bottle. The bottles found in appellants’ house were so similar in kind
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and quantity to those stolen, and the coincidence so remarkable and increasing with each similar item, as to fully authorize the verdict.
Jordan v. State,
Judgment affirmed.