People v. Stevens

Foote, C. The defendant was convicted of burglary in the first degree. A motion for a new trial was made and denied. From the order made in the premises and and the judgment of conviction this appeal was taken.

It is urged that error was committed in admitting the evidence of a witness, Parrott, with reference to the acts of one Harrigan, who had been indicted jointly with defendant, but as to whom, on the trial, a severance was had.

One Cohen had previously testified that the defendant, on the morning following the night when the burglary with intent to commit larceny was alleged to have been committed, had entered his store and endeavored to sell him boots similar to those claimed to have been stolen, and that while the defendant was in the prosecution of that purpose he, Cohen, looked out and saw Harrigan standing outside.

The question asked Parrott, against the objection of the defendant, was:—

“ Q. — Did you see Mike Harrigan and any one else on the evening of December 31, 1884, in the neighborhood of Joseph Gutberlet’s store? State what you saw.”

To which the following reply was given, also against the defendant’s objection:—

[115]“A. — On the evening of December 31, 1884, at about eight o’clock p. m., I saw a man named Harrigan, and two others who I don’t know, looking in the window of Joseph Gutberlet’s store, and when they saw me coming they ran away.”

The judge who presided on the trial evidently must have concluded that by the testimony of Cohen a sufficient foundation was laid to establish, prima facie, the fact of conspiracy between the defendant and Harrigan, or that it was proper testimony to be laid before the jury as tending to establish such fact. In- this we cannot concur.

Suppose a thief to be selling a stolen watch at a jewelry store, anywhere in the crowded city of San Francisco, on some public thoroughfare: would the mere fact that any respectable citizen stood on the outside, and the proprietor of the store observed him there, tend to prove any conspiracy between him and the thief in the commission of a burglary the night before, when the watch was stolen ? And yet the evidence as to a conspiracy between the defendant and Harrigan, as given by Cohen, was no stronger than the incident above supposed.