People v. Collins

SHINN, P. J.

Robert Michael Collins was accused by information of burglary and by amendment of the information was also accused of receiving stolen property. In a jury trial he was convicted of burglary of the second degree and acquitted of having received stolen property. He was sentenced to state prison. He appeals from the judgment, and notices an appeal from an order denying his motion for new trial. The burglary consisted of breaking into a convertible

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model of an automobile and removing and carrying away the top.

The points on appeal are (1) the undisputed evidence establishes the defendant’s innocence; (2) the district attorney was without authority to amend the information to include a charge of receiving stolen property in the absence of a commitment for that offense; (3) it was error to quash a subpoena issued upon request of defendant; (4) error was committed in the reception and rejection of evidence; (5) there was a deprivation of full cross-examination of a prosecuting witness; (6) the state failed to call important witnesses, to the prejudice of defendant; and (7) error was committed in the court’s refusal to give defendant’s instruction on the defense of alibi. We do not find any of these assignments of error to be sustainable.

The sufficiency of the evidence to support the verdict will appear from the following statement: January 31, 1962, Wallace H. Tallant, a police officer, owned a 1958 Corvette convertible with a top held on by three bolts. At about 2 p.m., January 31st, he parked the car about a block from the police station and when he returned at about 11 p.m. that day he found the top to be missing. A window on the driver’s side was shattered. February 2, Tallant bought another top from Harry Mann Chevrolet and had it installed on the ear. Tallant did not examine the top until he reached home that evening and then discovered from identifying marks on the top that he had purchased the identical top that had been taken from his car. Michael Di Güiro had sold Tallant the ear a few months before the theft occurred. A few days after the top was stolen, Di Güiro examined the top at Tallant’s request and identified it as the one that was on the ear he had sold to Tallant. There was no evidence that Tallant did not buy his own car top.