People v. Neal

YORK, P. J.

Appellant and his codefendant Neal were jointly charged in an information with crime of burglary in that on December 16, 1941, they entered the men’s furnishing store operated by Harry F. Teeter at Hynes, California, with the intent “to unlawfully and feloniously commit theft.” The cause was submitted to the trial court (sitting without a jury) upon the transcript of the preliminary hearing together with additional testimony concerning the purported confessions made by appellant Graham to the arresting officers.

From the judgments of conviction of the crime of burglary of the second degree, appeals were taken by both defen

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dants. The appeal of defendant Neal was dismissed on June 22, 1942, leaving for the consideration of this court the appeal of defendant Graham from said judgment of conviction.

Appellant urges (1) that the court erred in finding him guilty before it determined whether his confession was free and voluntary; (2) that the evidence showed said confession to be involuntary and procured by fraud.

The record herein reveals that when Harry F. Teeter, who operated a men and boy’s clothing store at Hynes, California, arrived at his store on the morning of December 17, 1941, he found articles of clothing, jewelry, etc., missing. Upon investigation he discovered the door to the store had been opened and a skylight broken. He testified, that he locked the door before leaving the store the previous night and had given no one permission to enter the store; that he checked the items missing and estimated their value at $800; that on December 18, 1941, he recovered practically 100 per cent of the missing articles. On December 18th, Edward A. Fachman, a deputy sheriff, arrested appellant in company with the defendant Neal. At the preliminary hearing said officer was asked if he had a conversation with appellant and defendant Neal at the Norwalk police station after making the arrests (at which time appellant acknowledged he participated in the crime) to which question the witness replied in the affirmative and said that the statements made by appellant were free and voluntary. Appellant’s counsel was permitted by the magistrate to propound a few questions to said officer on