People v. Palumbo

CONREY, P. J.

By the first- count of the information appellants were charged with the crime of robbery, committed on the third day of February, 1932. By the second count they were charged with grand larceny committed on said third day of February, by stealing an automobile. They were tried together and were convicted on both counts. They present separate appeals from the judgments and from the orders denying their motions for a new trial.

It is contended by appellants that the two offenses were improperly joined in the same information, the alleged crimes being not connected together in their commission and not being of the same class of crimes. For this reason it is argued that they did not come within the provisions of section 954 of the Penal Code, which defines the cases in which two or more different offenses may be included in one information. Even if the point might have been meritorious if properly reserved in the record, it cannot be considered on the record now before us. A defendant may

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demur to an indictment or information, when it appears upon the face thereof: “that more than one offense is charged, except as provided in section nine hundred and fifty-four”. (Pen. Code, sec. 1004, subd. 3.) And such an objection can only be taken by demurrer. (Pen. Code, sec. 1012.) If the charged offenses of robbery and grand larceny were not of the same class of crimes that fact appeared on the face of the information; and if the information failed to show that the two offenses were connected together in their commission that also appeared on the face of the pleading, and the objection could have been raised by demurrer. (Pe

ople

v.

Degnen,

70 Cal. App. 567, 573 [234 Pac. 129].)

Appellants claim that the court erred in overruling defendants’ objections to testimony relating to the commis-' sion of an offense other than those charged in the information. This was evidence to the effect that on the evening of February 3d, shortly after the time of the robbery, defendants were arrested in a drug-store, the circumstances of the arrest being such as to indicate that the defendants had committed burglary in entering the store. The record indicates that this evidence was introduced as part of an effort to prove that a revolver found on the floor of the drug-store at the time of the arrest was the same revolver that had been used in the commission of the robbery, and to prove that defendants had attempted to get rid of the revolver by leaving it in the drug-store when they found that they were caught in that place. For this purpose the evidence was admissible. The fact that it also indicated the commission of burglary by the defendants was merely an incident in the proof of the facts concerning the finding of the revolver. There was no error in the reception of this evidence. Appellants further contend, however, that this evidence concerning the revolver was not admissible because defendant Palumbo’s admission of the fact that this was his revolver removed from the issues the question of possession of the gun. But at the time of the reception of this evidence Palumbo had not testified, and had not in any way admitted to the court his ownership or possession of the gun. There was evidence that he had made such an admission out of court, but that evidence remained open to denial and dispute. For this reason we think that the