People v. Norton

McCABE, J. pro tem.

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Defendant appeals from a judgment of conviction of burglary, second degree, violation of section 459, Penal Code, and from a denial of his motion for a new trial.

By Count One of the information Hauser and Williams were charged with a violation of section 459, Penal Code. To this count Hauser and Williams entered a plea of guilty. In Count Two, Williams and defendant Norton were charged with a violation of the same section. Later, Count Two was dismissed as to Williams and defendant entered a plea of not guilty. Upon the trial the jury returned a verdict of guilty.

Defendant raises two contentions (1) certain evidence concerning the activities of Hauser and Williams was erroneously admitted, and (2) an instruction concerning a change of mind and withdrawal was improper and should not have been given.

Hauser, Williams and defendant had known and associated with each other for over a year. Defendant frequently dated Williams’ sister. About a week before June 20, 1957, some gloves were purchased by defendant, which fact was known by Williams since Williams and defendant had talked about committing a burglary. These gloves were placed in the glove compartment of defendant’s car, to which Williams had access

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at all times. On June 20 these gloves were taken by Williams from Norton’s car and placed in Williams’ vehicle where Hauser saw them on June 20, 1957. There was an understanding between Williams and Hauser to burglarize the Polar lee Cream Company store. Inadvertently, Hauser took two left-handed gloves and went into the store but for some reason committed no criminal act while there. Williams waited for him outside. After coming from the store Hauser hid the gloves in a hedge. Later Hauser was picked up by Williams. They then proceeded to pick up Williams’ girl, and then Hauser was “dropped off” at the Naval Station. Williams and his girl then went to defendant’s trailer where defendant and his girl were present. Williams told defendant what had happened with Hauser at the store. The two girls were taken home by Williams and defendant. They used defendant’s car. Williams and defendant then proceeded to the same store under an agreement to burglarize it. Upon arriving at the store Williams took the remaining two gloves. Finding both were right-handed, he used one and left one in defendant’s car. Williams taped his left hand. All of these events occurred in the presence of defendant. Williams then proceeded into the store and burglarized it of some rolls of pennies and a cigarette lighter. Prior to going into the store, defendant told Williams he “wasn’t going to have anything to do with the burglary.” Defendant did not wait for Williams. After leaving the store Williams dropped the pennies, cigarette lighter and the one glove in some bushes, returned to defendant’s trailer, informed defendant he had entered the store, taken some pennies and where they were hidden. This occurred in the early morning hours of June 21. At about 4:30 or 5 o’clock a. m., Williams took defendant’s ear and returned to the place where he had dropped the articles. The record is not clear as to what there occurred. Later a police officer, with the permission of defendant, searched defendant’s car and found one right-handed glove in the glove compartment. All the gloves were of identical make, size and description. The glove, pennies and lighter were later recovered from the bushes and were identified in the record. At the police station, defendant told conflicting stories of the recited events and at one time told the police he had committed the burglary. At the trial, defendant did not take the witness stand and did not present any defensive evidence. Hauser and Williams, over the objections of defendant, testi