People v. Hight

DORAN, J. In two informations which were consolidated for trial the defendant was accused of burglary. The jury returned a verdict of guilty of burglary of the first degree [499]in each case, and in each case found the prior conviction of a felony to be true. Motions for a new trial were denied, and the appeal is from the judgment and from the order denying the motion for a new trial, in each case.

It is not contended on appeal that the defendant was not guilty of the alleged burglaries; to the contrary, the appellant’s guilt is in effect conceded. It is urged, however, on appeal that the evidence is not sufficient to support the verdicts of guilty of first degree burglary.

It is also urged on appeal that persistent misconduct of the district attorney prevented the defendant from having a fair and impartial trial.

The facts briefly are as follows: One of the offenses charged was the burglary of the home of one Alex Schwartz, on or about June 24, 1939. Mr. Schwartz testified that he lived with his wife and son in an apartment house located at 408 South Cloverdale Avenue in Los Angeles; that they were home on Saturday, June 24th, until about 9:00 o’clock in the evening, when they went out until midnight; that their apartment had only one entrance door, which was fastened with a Yale lock, and that he locked the door when they went out that night; that when they left the apartment house that evening his attention was directed to a dark, “old-looking sedan”, which was parked in front of the entrance door; that there was a light in front of the apartment house and that he could see very plainly a woman sitting in the car; that the apartment was being cleaned on Sunday morning, the next day, at about 11:30 o ’clock, when it was discovered that his wife’s fur coat and his boy’s watch were missing; that he then discovered that the door to his apartment was cut where some kind of an instrument had been inserted to pry the lock back, although he had not noticed this on the occasion of their return to the apartment at midnight.

Mr. Schwartz was later recalled to the stand and he testified that the woman whom he saw in the car was “The lady with the brown coat on there in the second row”, indicating a woman sitting in the back part of the courtroom. Following this testimony the lady who was pointed out was summoned to the witness stand by the prosecuting attorney as a witness on behalf of the People. She testified that her name was Miss Maxine Roberts and that she was acquainted