People v. Rose

ROTH, J., pro tem.

On March 18, 1935, the rumble seat of an automobile driven by a cigaret salesman was pried open

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and a suitcase and hat belonging to the salesman were liftéd from the inside. The suitcase contained cartons of eigarets and some miscellaneous articles. By information charging petit theft and prior conviction of a felony, which latter charge defendant admitted, defendant was brought to trial for stealing the eigarets, valued at $20, contained in the suitcase. No one saw defendant open the rumble seat and take the articles described. The testimony showed, however, that the salesman parked his car approximately at 3 P. M. and encountered the defendant a few minutes later, whom he knew casually, in company with one Sherman, and that shortly after 3 P. M. defendant and Sherman entered the backyard of a dwelling within a few blocks of where the. automobile was parked, one of them carrying a suitcase. An eye-witness testified that he saw defendant and Sherman in the backyard, saw them open the suitcase and take cartons of eigarets out of it, and that both men then left leaving the suitease and its remaining contents behind. The eye-witness followed them to the front steps of an apartment house a short distance away and saw Sherman wrapping up cartons of eigarets “in a piece of light paper”. Shortly thereafter, the witness notified the police and both men were almost immediately arrested. In a search of defendant’s room the police found a hat. At the trial the salesman testified that the suitcase and such contents thereof which had been left behind in the backyard referred to were his property, and also that the hat which officers found in defendant’s room was his (the salesman’s) hat. After defendant’s arrest, according to the testimony of one of the police officers, the following conversation took place between the defendant and the officer. “ . . . We asked Mr. Rose what he had done with the eigarets and he studied a little while and he said: ‘If you boys will give me about half an hour, I will let you know if I am going to have anything to say or not,’ and we told him: ‘All right,’ and we went into the detective bureau, and in about half an hour we went back in the jail, and he says: ‘Well, I have decided I am not going to say anything; I am going to try to beat this rap;’ that is about the substance of the conversation.”

At the trial the defendant denied the above conversation, denied that he had taken the suitcase or hat or anything else out of the rumble seat of the automobile, and asserted he had