People v. Derwae

MELVIN, J.

As we are in accord with the decision of the district court of appeal upon all but one subject presented by the record in this case, it will be necessary to consider only the matter of the alleged misconduct of the assistant district attorney who conducted the case on behalf of the people.

The appellant was charged with the crime of burglary and was convicted of an “attempt to commit burglary in the first degree.” The evidence was largely circumstantial, but the defendant, who took the stand in his own behalf at the trial, did not deny any of the essential physical facts put in evidence by the prosecution. He did, however, have an explanation of his conduct which, although it evidently was not believed by the jury, cannot be characterized as intrinsically improbable.

The defendant owned in the city of Stockton a building which was occupied in part by a grocery store. At the back part of the store was a door opening into a portion of the building which was occupied by defendant and his family as a residence. Over this door was a transom large enough to admit the passage of a man. The grocers had, from time to time, missed articles from the store, and on Sunday, the twentieth day of September, 1907, they determined to make an effort to catch the thief. The store was closed at eleven o’clock in the morning, according to custom; and on that evening one of the proprietors of the grocery store and a companion entered the place and secreted themselves. When they went into the store they noticed that the transom was open and that there was a ladder inside reaching from the floor to the opening above the back door. From their hiding place the two men saw the defendant several times looking through the transom. Finally he reached inside for the ladder and began to pull it

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upwards. At this juncture the witnesses sprang from their place of concealment; pulled the ladder from the grasp of defendant; and telephoned for the police. When the ladder was seized, Mr. Pezze called the defendant an uncomplimentary name and said: “I have been feeding you for the last five years; now is time to stop you.” Defendant replied: “Boys I want you to keep your cat out of the way from here, the cat has been bothering me and making so much racket.” It was shown that the cat was in the store at the time and had been making some noise. There was evidence also that defendant offered to pay for anything which might be missing from the store and that he endeavored to settle the matter with the owners. On this particular Sunday nothing was missed from the stock of the grocers. Defendant testified that he had been attracted to the store at the time he was discovered by sounds which he feared were made by burglars. He also stated that the ladder had been lowered into the store by him and his wife for the purpose of providing for the escape of the cat.