People v. Gould

MUSSELL, J.

Appellant was charged with the crime of burglary (Pen. Code, § 459) in that on or about March 13, 1958, he did wilfully enter a building known as a washroom of a trailer park in Palm City, San Diego County, with intent then and there and therein unlawfully and feloniously to commit theft. He entered a plea of not guilty and a trial by jury resulted in a verdict finding him guilty of burglary as charged in the information and fixing the degree of the crime as burglary in the second degree. Appellant was committed to the psychopathic ward for advisory psychopathic proceedings and report to the court and further hearing was ordered for July 15, 1958. On October 10, 1958, the trial court, after having read and considered the probation and other reports, arraigned appellant for judgment and ordered that he be punished by imprisonment in the state prison at Chino, California.

Appellant appeals from the judgment of conviction, claiming prejudicial misconduct on the part of the district attorney

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and error of the court in failing to admonish the jury to disregard certain testimony and statements of the district attorney. It is not the contention of the appellant that the evidence is insufficient to support the verdict.

On March 13, 1958, shortly after midnight, appellant was arrested by a police officer in the washroom of the Palm City Trailer Park in Palm City, San Diego County. The washroom contained a washing machine, a drier, a soft drink machine, a cigarette machine, and a public telephone, book and receptacle. At the time the officer entered the room there were no lights on, the door of the cigarette machine (which contained a coin box) was pried open and clothespins had been slipped behind it. The appellant was standing over the drier and a screw driver and a pair of pliers were lying on top of it. The officer asked appellant “whose these were” (meaning the pliers and screw driver), and he said, “Mine.” When asked what he was doing there, appellant replied, “I live here and my wife sent me down to light the pilot light in the drier.” Later, appellant stated to the officer that he came to see what he could get out of the machines and that he entered the washroom to see if he could get something. When questioned at the city jail on March 14th, appellant stated he had financial problems with his wife; that he was having trouble making ends meet and was trying to figure out how to get some money; that he had thought of committing a theft on that day and was going to drive around and try to find a place to commit a theft; that he went to the trailer court to use the rest room, found it locked, entered the washroom saw the cigarette machine, decided to open it, procured a screw driver from a lady who had just driven into the court, and then started to pry open the machine.