People v. Wagner

PLUMMER, J.

The defendant was convicted of the crime of burglary in the second degree upon an information charging as follows; “The said George Wagner on or about the 1st day of April, A. D. 1925, in the said County of Sacramento, in the said State of California, and before the filing of this information, did then and there wilfully, unlawfully, feloniously and burglariously enter the building used as a restaurant by one P. Koris at 1418 J Street, in the City of Sacramento, in said County of Sacramento, with the felonious intent then and there to commit the crime of larceny, contrary to the form, force and effect of the Statute in such case made and provided, and against the peace and dignity of the People of the State of California.” From the testimony of the defendant during the course of the trial it developed that the defendant had suffered two previous convictions, and the court in pronouncing sen

[505]

tenee adjudged the defendant an habitual criminal under the terms and provisions of section 644 of the Penal Code. From the judgment of the court, the defendant appeals and assigns two grounds of error: (1) That the evidence is insufficient to warrant the conviction of the defendant, and (2) that the judgment adjudging the defendant an habitual criminal is erroneous, in that there was no pleading charging the defendant with prior convictions.

Upon the question as to the sufficiency of the evidence, the only matter called to the attention of the court is the alleged absence of a scar on the defendant’s head. The circumstances attending the offense for which the defendant was convicted are set forth as follows: About 10 o’clock at night on April 1, 1925, the defendant and one other person were discovered attempting to break into a restaurant on J Street in the city of Sacramento. An alarm being given, officers arrived and observed a'short man standing inside the restaurant near the cash register, but before he could be arrested this man emerged from the front door of the restaurant, crossed the street, and was followed by an officer named Kaminsky. The officer overtook the short man just as he started to climb a fence in an alley between I and J Streets in said city, and in the scuffle that ensued the officer struck the defendant over the left ear with his revolver. This short man then grappled with Officer Kaminsky, succeeded in taking away the officer’s revolver and making his escape. A blood-stained cap was found thereafter near the Western Pacific track. On the back porch of the restaurant was also found a coat with the name of G-. Wagner on a label in one of the pockets. The defendant was identified by Kaminsky as the man with whom he had had the struggle in the alley. Upon the trial, the defendant exhibited his head to the jury to show that he had no scar. To rebut this evidence, the prosecution introduced the testimony of Dr. Binkley to the effect that there had been a scar on defendant’s head about the middle of May succeeding the date of the offense. As opposed to the testimony of Dr. Binkley, appellant cites Ogstrom Lectures, Medical Jurisprudence, 425, Taylor on Medical Jurisprudence, page 333, and Herold on Manual of Legal Medicine, page 305, to the effect, “that if, on examining a part, where at some previous time a stab, cut or burn involving