People v. King

SPENCE, J.

The defendant Lawrence J. Carmody and one Frank King were jointly charged with burglary. King entered a plea of guilty, while Carmody entered a plea of not guilty. Upon a trial by jury Carmody was found guilty of burglary of the second degree, and he appeals from the judgment of conviction and the order denying his motion for new trial.

The charge set forth in the information involved the burglary of the apartment of Mrs. Y. R. Yelsir at 2626 Ashby Avenue, Berkeley, shortly before noon on August 2, 1933. Carmody and King were arrested in San Francisco at about 5:30 P. M. of the same day after King had pawned or sold to one Zwillinger a diamond ring of the complaining witness which had been stolen from her apartment. The two men were separately questioned regarding several burglariés. On August 4, 1933, Carmody was told that King had made a statement to the effect that the two men had gone to Berkeley together on August 2d; that Carmody had entered the apartment of the complaining witness and taken her diamond ring therefrom after the complaining witness had gone upstairs with King to show him a vacant apartment; that Carmody had turned the ring over to King on the boat returning to San Francisco and that King had sold the ring to a dealer named Zwillinger for $25 and divided the proceeds with Carmody. To this statement Carmody replied, “I have nothing to say, you will have to see my attorney.” A few days later Carmody consented to paying and did contribute $12.50 out of the money taken from him at the time of arrest toward repaying Zwillinger the $25 which had been paid by Zwillinger to King for said ring. The remaining $12.50 was contributed by King out of the money taken from him at the time of arrest. It should be stated that each of the men had more than $25 on his person when taken into custody. Carmody said, ‘‘I will stand my share of the $25

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the ring was pawned for.” The two men were charged in San Francisco with the burglary of an apartment house in that city. They entered pleas of guilty to that charge and each was sentenced to a year in the county jail. After completing their sentences, they were taken to Alameda County to face the charge herein.

On the trial no direct evidence was produced .to show that defendant Carmody had entered the apartment of the complaining witness. While King had been in said apartment, he was at all times in the immediate presence of the complaining witness. In order to connect defendant Carmody with the commission of the offense, the prosecution relied in part upon showing said defendant’s actions following his arrest as above set forth. They further relied upon evidence tending to show the plan or scheme under which Carmody and King operated. This latter evidence was admitted over the objection of defendant Carmody.