People v. MacKey

PEEK, J.

This is an appeal by defendants from a judgment of conviction following a jury verdict finding them guilty of burglary in the first degree. Both defendants represented themselves at the trial although counsel was appointed by the court for the purpose of consultation and advice. On appeal, pursuant to their request, counsel was appointed to represent them.

No question is raised on appeal concerning the sufficiency of the evidence to support the judgment. The errors alleged relate to the introduction of rebuttal evidence by the prosecution and the denial of defendants’ motion for a continuance.

The record shows that on the night of August 18, 1958, Boomer’s Sport Shop in Laytonville was burglarized. Entrance was gained through a window which had been broken. Missing from the shop were four rifles, five other guns, a metal box containing fishing and hunting licenses, and a roll of pennies. Several persons identified defendants and a third man as having been in the vicinity of Laytonville and the sport shop on the day of the burglary. On August 23, 1958, defendant Mackey was arrested in Tucson, Arizona. On his person was found a .38 caliber revolver, and in the rear seat of his car were two new rifles. Defendant Wilks was present at the time of the arrest and stated to the officers that the rifles were his. He was later arrested when it was found that the rifles had been reported stolen by the California authorities. The two rifles stated by Wilks to have been his, and the revolver found in Mackey’s possession were all identified as having been among those stolen from the sport shop.

On cross-examination Mackey testified that he and Wilks had gone to the home of his cousin, R. J. Rucker, but denied that he had taken the rifles to Rucker’s house. Wilks testified that they had gone to the cousin’s home but that no one was

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there and that Mackey had gotten out of the car but that he, Wilks, had not. In rebuttal the prosecution offered in evidence the two rifles which were identified as having been stolen from the sport shop and had been found in Eueker’s house in a closet together with some of Mackey’s clothes. These rifles were admitted into evidence against both defendants and over the objection of Mackey that it was improper rebuttal evidence and that there was insufficient foundation to tie the evidence into the case, and over the objection by Wilks that there was not sufficient foundation to connect him with the evidence. Both objections were overruled.