People v. Watson

SHAW, J.

Upon an information charging him therewith, defendant was convicted of the crime of burglary in the second degree. He has appealed from the judgment and an order denying his motion for a new trial. -

That the evidence is ample to justify the verdict is not questioned.

It appears that by means of a pass-key the house of J. M. Oakey was burglariously entered in his absence in the daytime and a pair of socks, necktie, and a child’s bank containing a small sum of money stolen therefrom. Shortly thereafter defendant was apprehended and upon a search of his person, had without warrant, a bunch of pass-keys, the stolen necktie, and socks, together with a small sum of money, were discovered in his possession.

When the case was called for trial defendant, pursuant to notice theretofore given, moved the court that an order be made requiring the articles so taken from defendant to be returned to him. The motion was denied and, over defendant’s objection, the articles were received in evidence, together with testimony that he had possession of the passkeys. He insists that the ruling of the court in denying his motion and permitting the introduction of such evidence was in violation of his rights guaranteed by the fourth and fifth amendments to the constitution of the United States, and sections 13 and 19 of article I of the constitution of the state of California, in support of which he cites the case of

People

v.

Mayen,

35 Cal. App. Dec. 442.

[87]

[1]

We may dismiss from consideration the provisions of the federal constitution for the reason that it is well settled that the fourth and fifth amendments thereof, invoked by defendant, apply to searches and seizures only when made by the federal government and its agencies

(Weeks

v.

United States,