People v. McCarthy

SPENCE, J. Defendant Juanita McCarthy, her brother Eddie Pacheco, and her brother-in-law Rexal McGee were charged in one count of the information with the crime of conspiracy to commit burglary and theft and in each of several other counts of the information with the crime of burglary. Defendant Juanita McCarthy was convicted upon a trial by jury of the crime of conspiracy as charged in the first count, of the crime of burglary in the second degree as charged in the second count and of the crime of burglary in the first degree as charged in the third count. Said defendant was acquitted on the remaining counts. Her co-defendants were also convicted but they have not appealed. Said defendant Juanita McCarthy has appealed from the judgment of conviction and from the order denying her motion for a new trial.

The main contention of appellant on this appeal is that the evidence was insufficient to sustain her conviction. We shall therefore briefly summarize the evidence upon which appellant’s conviction was based.

Appellant resided in Oakland and her two brothers, Eddie Pacheco and Victor Pacheco, were in Los Angeles. In the early part of May, 1939, said brothers stole some kettle drums and chimes in Los Angeles, which stolen property was brought to the home of appellant on May 19, 1939, by Eddie Pacheco, who then took up his residence with appellant. Thereafter, said Eddie Pacheco and Rexal McGee committed several burglaries, including two separate burglaries committed on the premises of a Mrs. Mullen who was a neighbor of appellant. It was these two last mentioned burglaries which were the subjects of the second and third counts of the information.

On May 22, 1939, being three days after the arrival of Eddie Pacheco at the home of appellant, Mrs. Mullen was present with appellant and Eddie Pacheco in the home of appellant. She heard Eddie Pacheco telephoning to someone regarding drums and after concluding he said to appellant, [280]“He has already bought some.” Shortly thereafter, appellant stated to Mrs. Mullen that it was necessary that she and her brother go to San Francisco that afternoon. On said afternoon, appellant assisted her brother in moving the drums from the back of his car into the back seat of her own car and drove him to San Francisco where he disposed of said drums and chimes at a drum shop. The proprietor gave Eddie Pacheco a cheek which was made out in the fictitious name of Eddie Francis. Shortly thereafter, appellant and Eddie Pacheco appeared at a tavern in San Francisco, the proprietor of which tavern had known appellant for about twenty years but had never known her brother. Appellant requested said proprietor to cash the check received for the drums and chimes but did not tell him that Eddie Pacheco was her brother or that his name was Pacheco, and not Francis. The proprietor cashed the check which was endorsed by Pacheco using the fictitious name of Eddie Francis which appeared on the check.