People v. Walters

SHINN, P. J.

In a jury trial appellant was convicted of first degree burglary. His motion for new trial was denied and he appeals from the judgment and order.

The appellant was accused of burglarizing the home of Mr. Donald Marshall on the evening of September 13, 1959. A neighbor, Mr. Drinkwater, at approximately 10:30 p. m. heard someone moving about in Marshall’s residence. He observed the residence which was approximately 20 feet away and testified that he saw the appellant come out of the back door of the Marshall residence carrying a television set and a portable phonograph. Mr. Drinkwater further testified that he saw the appellant enter whát he thought to be a 1950 bronze-colored Oldsmobile. The appellant was arrested on September 25, 1959. At this time he was a passenger in a 1950 Oldsmobile, bronze in color.

The appellant’s defense was an alibi. He did not take the stand. A Mrs. Baylark testified that on the night of the burglary appellant stayed at her home from 8 p. m. until the following morning.

The prosecution offered the testimony of Officer MeMenamin in rebuttal. This officer testified that during the course of his investigation of the ease he had a conversation with appellant and that appellant stated he did not know Mrs. Baylark and that he did not spend the night of September 13, 1959, the night of the burglary, at her residence.

Counsel for the appellant objected to the testimony of Officer McMenamin upon the grounds that it could not be admitted after the close of the prosecution’s ease in chief, and that it was improper impeachment of the witness, Mrs. Baylark. The objections were overruled, the court admitting

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the evidence for the purpose of impeaching the witness and to contradict the alibi defense.

The appellant contends that the statement as testified to by Officer MeMenamin is not competent to impeach the testimony of Mrs. Baylark.

This contention is without merit. Section 2051 of the Code of Civil Procedure provides in part that a witness may be impeached by the party against whom he was called by contradictory evidence. The statement of appellant clearly contradicted the testimony of Mrs. Baylark as to the appellant’s whereabouts on the date of the commission of the offense. In this connection, it should be noted that appellant properly admitted in his opening brief that the statement in question clearly constituted an admission against his interest and was therefore admissible as an exception to the hearsay rule.