People v. Sizelove

MOORE, P. J.

From convictions of burglary and from the order denying their motions for a new trial, appellants seek a reversal on the grounds of asserted errors in rulings during the conduct of the trial and in refusing to give an instruction in the language proposed by them. While in their notice to the clerk they included the insufficiency of the evidence as a basis for appeal, it was not mentioned in their brief. Good reason: they were apprehended while attempting to escape and admitted having entered the home of Richard Koon in Lakewood. Defendant Hall besought his captor for a “break” to escape. Sizelove carried a putty knife with a blade about an inch long, and bore a cut over his shoulder blade which he declared had been caused by the bite of a dog. The Koon window was crashed out, the screen over a front window had been ripped off, the screen on the service porch was pried loose, the window was standing ajar, and the kitchen cupboards were open. The dresser drawers

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and the closet door were open and purses, combs and feminine accessories were scattered about the rooms. Hall said to Deputy Conway: “I sure pulled a boner this time . . . that caper.

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I sure pulled a foolish trick going in that house.” The defense at the trial was based upon the testimony of both men who maintained that (1) they were drunk and (2) they were under the mistaken impression that they were “returning” to the house next door. But neither man was intoxicated when arrested, and the lady next door had no engagement for them to return and did not expect them.

Because prior convictions of felonies were charged against both men, the prosecuting attorney inquired of Sizelove the duration of his acquaintance with Hall and then “as a matter of fact, you and he were engaged together in bad check passing in the latter part of 1953.” Objection was interposed on the ground that “this witness’ character is not on trial at this time. ’ ’ The objection having been overruled, the witness answered: “That is correct.”

Appellants now contend that the ruling was prejudicial; that there is no relationship between the burglary charged and the issuance of the fictitious checks in 1953; that it was an attempt to prove the burglary by evidence of a prior conviction and that such proof has no tendency to prove some material fact about the burglary. Such contention is error. It is the law that evidence which tends logically and by reasonable inference to establish any fact material to the People’s case or to any fact urged as a defense is competent although it may connect the defendant with a crime not included in the accusation.