People v. Pongetti

NOURSE, P. J.

The defendant was tried to a jury and

convicted on six counts of an information—the first count for burglary, second

degree;

the second for burglary, first

degree;

the third for burglary, first degree, which was reduced to second degree by the

court;

the fourth count for assault with a deadly weapon, the fifth count for assault with a deadly weapon; and the sixth for the violation of section 2, Deadly Weapons Control Act as amended in 1931 (Stats. 1931, p. 2316; Deering’s Gen. Laws, Act 1970).

The information also charged a prior conviction of burglary and the serving of a prison term thereon in California. The defendant also admitted that in 1928 he had been convicted in the State of Connecticut for auto theft, and in 1930 for a similar offense in the same state. A motion for a new trial, addressed to the third count alone was made and denied. The appeal is from the judgment and from the order denying a new trial.

The appellant does not attack the sufficiency of the evidence on any of the six counts. Briefly it appears that, with the aid of a confederate who pleaded guilty, appellant broke into a tavern on July 9, 1944, and took about $2,800 in currency and checks and a .32 automatic pistol. On August 12, 1944, the same pair broke into another tavern and took about $1,500 and a .38 caliber revolver. In both instances the safe on the premises was drilled and broken open. On December 3, 1944, the same pair sawed their, way through the roof of another tavern but were frightened away when they inadvertently set off the burglar alarm. They were seen running from the premises, one carrying a heavy grip. A bystander noted the car in which they made their escape and a short time thereafter two police officers stopped them in a distant part of the city. Both men were ordered from their ear and searched.

[751]

When one of the officers attempted to handcuff the men, Pongetti drew a gun from under his belt and threatened to shoot them. One of the officers shot and seriously wounded Pongetti and the other was arrested without resistance. A suit ease containing burglar tools and three revolvers was found in the back of the car. One of the revolvers was that taken in the burglary charged in the second count. The gun used by appellant at the time of his arrest was the one taken in the burglary charged in the first count. In the trunk of the car was found approximately $2,300.