People v. Masters

DESMOND, J.,

pro

tem.

The defendant, convicted by a jury of first degree burglary, seeks a reversal on the grounds of insufficiency of the evidence, refusal of the court to give one of his requested instructions and the admission of certain evidence hereinafter mentioned in some detail. The appeal is also from the order of the trial court denying a new trial.

The complaining witness, one Anderson, had a room upon the sixth floor of a hotel in Los Angeles. Shortly after midnight of February 2, 1933, he went to bed, leaving his

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trousers on a chair in his room. In a pocket of his trousers was a single-fold wallet containing a $10' bill, a $5 bill and a check. The bills were folded once. The house officer of this hotel, one Brophy, testified as follows: While he was making his rounds at 5:50 A. M. February 3d, he saw the defendant in his stocking feet back out of Anderson’s room and slowly and quietly close the door; that at this time witness was only eight or ten feet away from the defendant, who then passed within a foot of him and bounded up two flights of stairs, the officer pursuing, but failing to see him in the hallway when he reached the eighth floor, hearing one of the doors in that hall shut just before he reached the top of the stairs. Brophy then went back to the sixth floor, entered Anderson’s room and awakened him. Anderson found that his wallet was gone. Brophy then returned to the eighth floor, summoned the elevator operator and the two went to the defendant’s room on that floor and knocked for admittance. Before the lmock was answered both these witnesses, according to their testimony, heard the toilet in defendant’s room flushed several times. Brophy searched the defendant upon entering his room and in his side trousers pocket found a $10 bill and a $5 bill folded once. Mr. Morey, the manager of the hotel, was summoned to the room, and later Brophy went down to the sixth floor, where Anderson had remained meanwhile, and then both of them went back to the defendant’s room at about 6:20 A. M., according to Anderson. Two police officers entered shortly afterward and the defendant was searched again by one of them, who found $23 in bills in defendant’s watch pocket near the belt strap of his trousers. In the water at the bottom of the toilet in defendant’s bathroom, Brophy found two keys of unusual make, characterized by one of the officers as “picks”. No wallet was found upon the person of the defendant, but one of the officers, going to a window in defendant’s room, focused a powerful flashlight on the roof of a garage building about thirty feet below defendant’s bedroom window, and there saw an object which later proved to be Anderson’s wallet. The other officer went down to the third floor of the hotel and there gaining access to the garage roof from a window directly below the window of defendant’s room, picked up the wallet, and, on a second trip, the cheek which belonged to Anderson and which had