People v. Davis

McLAUGHLIN, J.

The defendant was convicted of burglary, and appeals from the judgment and an order denying his motion for a new trial.

We will notice only assignments of error discussed by counsel for appellant, assuming that all others are waived.

1. It is first urged that the district attorney and his as

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sistant, upon the examination of witnesses, and in argument, indulged in misconduct calling for reversal, and that the trial court likewise transgressed to the detriment of defendant.

It appears from the evidence and the unchallenged statement of counsel for appellant that Lillie Banks and Bertha Hodge were inmates of a house of ill-repute in Chinatown at Auburn. The burglary charged consisted of entering the room of the former in said house with intent to commit larceny.

Bertha Hodge was the principal witness for the prosecution, and testified that after midnight on July 17, 1904, she saw the defendant go up the back stairs of this house, and presently thereafter saw him standing by a dresser in the room occupied by Lillie Banks, taking some money from the latter’s purse. That later he came out, said he wanted to see Lillie, and went the way he came. During her examination many questions were asked and answered touching her acquaintance with defendant and the frequency of his visits to this house.

The prosecuting witness Banks was allowed to testify as to defendant’s familiarity with the premises, and his knowledge cf her manner of keeping money and other articles in the dresser and room. She also enumerated articles missed by her that night.

Upon this examination, and the arguments of counsel touching the facts elicited, many charges of misconduct against counsel and court are based.

The evidence was certainly relevant. It tended strongly to show that the witness Hodge could not have been mistaken as to the person she saw in that room that night, and accounted for the rapidity and certainty of movement manifested by the intruder.