People v. Moulton

[674]

KAUFMAN, P. J.—

Dennis Leroy Moulton and his brother, Larry, were found guilty by a jury of two counts of burglary in the second degree. Dennis alone appeals and contends that the trial court erred in the introduction of certain evidence and that the district attorney committed prejudicial misconduct. There is no merit in either of these contentions.

Viewing the evidence in the light most favorable to the People, as we must on appeal from a jury verdict, it appears that about noon on Saturday, September 30, 1961, the appellant and his brothers, Larry and Mickey, went to Brady’s Repair Shop just north of Crescent City in Del Norte County. Mr. Brady left about 12:30 p. m. before all of the repair work on Dennis’ black and white D.K.W. was finished. Mr. Brady’s son, Jim, and Mickey finished the work on the appellant’s car; then Jim Brady put all the tools away, locked the shop and left at the same time as the appellant and his brothers, about 1 p. m. When Mr. Brady returned to his shop on Monday morning [October 2], he found that one of the windows had been broken and certain tools were scattered about the floor. Mr. Brady had been there for only a few minutes when Deputy Sheriff Black came in with some items and asked Mr. Brady whether they belonged to the shop. Mr. Brady identified a pair of tin snips, a sledge hammer, a ball peen hammer, a screw driver, a punch, as well as an iron bar, which he had taken out of Dewey Hansen’s mowing machine the year before.

The deputy sheriff indicated that one screw driver, the sledge hammer, the punch and iron bar had been found on the floor of the Del Norte Ice and Cold Storage plant early Sunday morning in the investigation of a burglary, and the rest in the trunk of the appellant’s ear. Later the same day, when Mr. Brady’s bookkeeper came in, she discovered that the check protector was also missing. Mr. Brady notified the sheriff’s office, and the missing cheek protector was subsequently found underneath the seat of a vehicle parked in the appellant’s backyard.

About 11:30 on the evening of September 30, 1961, Mr. Viggo Hoyer, a private patrol operator, in the course of his duties, was checking the doors of the Del Norte lee and Cold Storage plant south of Crescent City. He found one of the plant doors open, entered and discovered someone had tampered with the safe. There was a warm acetylene torch and several tools on the floor, as well as insulation clay from the safe. He observed a small black and white foreign car out