People v. Barr

ARCHBALD, J.,

pro

tem.

Appellants Eckelberry and Marsiglia, together with defendants Barr, Griffith, Woodington and Lewis, were jointly charged in an information filed by the district attorney with conspiracy to commit a felony, in count I, burglary, in count II, robbery, in count III, and grand theft, in counts IV and V. On the same day another information was filed charging appellants Lawler and Denniston and defendant Laughlin with the same crimes, and in count VI of said second information with receiving stolen property. The first information also charged a prior conviction of felony as against Marsiglia, and the second a prior conviction against Lawler, which prior convictions were admitted. The charges under the two informations were consolidated for trial. Marsiglia, Eekelberry and Lawler pleaded not guilty, waived jury and were found guilty by the court on counts I and III of the first information mentioned, and defendant Lawler on counts I and III of the second, the other counts being dismissed. They have filed separate appeals from the judgments of conviction and from the orders denying their motions for a new trial.

Appellant Denniston withdrew his plea of not guilty and pleaded guilty as to count VI. He then applied for probation, which was denied, whereupon judgment was pronounced, the other counts being dismissed. He has appealed from such judgment of conviction and from the order denying his application for probation.

The warehouse of Smart & Pinal, Ltd., in Pasadena, was entered on the night of January 29, 1933, and a large quantity of cigars and cigarettes was loaded on a truck belonging to that firm and hauled away. The watchman, William A. Pinkley, was held up inside the warehouse, by two men, one having a gun, and was hit over the head, blindfolded and his hands tied behind him with a wire. He was then taken to the cellar, where his feet were tied, and

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was left there while the truck was being loaded and driven away. When he finally worked loose he found the front door unlocked, although it had been locked by him after entering that evening. It was shown that approximately 120 eases of cigarettes and six or seven eases o£ cigars were stolen, all of the boxes having the name of the firm stenciled on the outside. The truck was found by the Los Angeles police at Eighty-seventh and Vermont Streets, Los Angeles, and returned the next day. Frank McDannald, a warehouseman employed by Smart and Final, saw a number of cases of Smart and Final cigars and cigarettes in a candy and tobacco store at No. 1010 West Eighty-fifth Street, Los Angeles, on the day after the burglary in question, where he also saw appellant Denniston, and while standing in front of the store, according to his testimony, a man drove up and left six cases of cigarettes. The witness then went back into the store and observed that the stencil-mark had been removed from such cases. He identified them in court as having come from Smart and Final’s warehouse, by a cross-mark he had put on them in the warehouse.