People v. Romer

THE COURT.

Defendants were convicted of the crime of burglary under five counts, and the crime of robbery under seven counts. Their motions for a new trial being denied, this appeal was taken. In a voluminous brief they argue that the evidence against them is weak and that any serious errors must be deemed prejudicial. Their evidence was chiefly directed to the defense of alibi, to offset the testimony of identification. Nevertheless, they do not contend that the evidence is insufficient to support the verdict on any of the twelve counts, and it is therefore unnecessary for us to engage in any extended review of the record.

The first alleged error stressed on behalf of defendants is in the reception of the testimony of C. F. Fordice, a police officer. He was permitted to testify that two days

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after the date of the last offense charged against defendants he was on patrol duty checking automobile numbers, on the lookout for stolen cars; that he saw defendant Romer taking some grips and ladies’ wearing apparel out of a La Salle sedan; that by the number he knew that the car was wanted; that he told Romer to come to the station, saying, “There seems to be something wrong with the car”; that Romer asserted that the car was his; that Romer then asked him to wait until he could take the contents of the car up to his apartment, and that Romer went upstairs and disappeared. This testimony was offered to prove flight and a consciousness of guilt.

It is contended by defendants that since there was no charge against them of stealing an automobile, the testimony was erroneously admitted, since it did not tend to show flight following a charge of the crime for which they were on trial. Respondent argues, on the other hand, that other testimony in the record shows that Romer possessed and drove a La Salle sedan on the night certain of the crimes were committed, and that the testimony of Officer Fordice tends to show Romer’s connection with these crimes. We are not convinced of its admissibility on this ground, but while we might not approve of its reception, we are not prepared to give it the weight of reversible error under the circumstances of this case. Defendants had the opportunity to move to strike it out, and seek an instruction against its effect, which they failed to do. Nevertheless the court did instruct the jury that they were not to be influenced in any way by evidence of any offenses or matters not charged in the information.