People v. Dailey

PEEK, J.

This is an appeal by the defendant Dailey from a judgment of conviction of the crime of burglary in the first degree.

Two contentions are made on appeal: (1) That defendant’s conviction was the result of uncorroborated accomplice testimony ; and (2) that he was denied a fair trial, in that a witness for the State, a deputy sheriff, was permitted to remain in court in violation of the court’s order excluding witnesses, and the prosecuting attorney was guilty of prejudicial misconduct in his argument to the jury. Since it is the conclusion of the court that defendant’s first contention is well taken and the case must be reversed, we have limited our discussion to that issue and the evidence in regard thereto.

The record discloses that on the morning of February 10, 1959, Gary Gustin, Tommy Thompson and William Glen Meyers left the latter’s home in Napa and drove to Vallejo where they picked up defendant and returned to Meyers’ home in Napa. Upon their return there were also present Harold Griffith, his common-law wife, Meyers’ common-law wife and her four children. With the exception of Thompson who was then 16 years of age, all of the men had one or more prior felony convictions. According to Thompson, who was called by the prosecution, a discussion ensued concerning the possibility of committing a burglary. Defendant suggested

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they obtain a ladder for the purpose of breaking into a market in Vallejo. Meyers offered the use of one he had, but upon inspection by defendant and Griffith it was determined to be too long for their purpose, and the idea of burglarizing the market was abandoned. Thereafter the defendant, Gustin and Thompson left Meyers’ home in Meyers’ car and drove to the victim’s house where Gustin and Thompson broke a window and entered the home. They removed an accordion, an amplifier, a high fidelity set and a revolver. After placing the articles in the car they returned to Meyers’ home. With Meyers’ assistance the three carried the stolen articles into the house and hid the amplifier, accordion and the high fidelity set in his bedroom closet and hid the gun under a davenport in the living-room. Thompson and Gustin then drove the defendant home and returned to Meyers’ residence and went to bed. A day or two later Griffith and Gustin, with the assistance of defendant, moved the stolen articles which by then had been placed in a sealed cardboard box to a home Griffith had just rented. The box, still sealed, was later discovered by police in Gustin’s bedroom and the gun was found in the basement of Griffith’s home.