People v. Bashaw

MARKS, J. This is an appeal from an order denying a motion for new trial, and from the judgment pronounced on defendant adjudging him an habitual criminal with five prior convictions, and sentencing him to imprisonment for the term prescribed by law.

Benito Chavez conducted a business established in El Centro in Imperial County. In it were a bar, a restaurant, and a pool room with a cash register in each department. The place was securely locked at midnight of October 17, 1946. Some of the windows were open but metal screens were over all of them. Change had been left in the cash registers for use the next morning. When the establishment had been closed a search [975]disclosed no other person in the building aside from the three mentioned below.

About 4:30 o’clock on the morning of October 18, an employee of the owner who was sleeping on the premises with another employee and a third person, was awakened by a light being turned on. The employee found defendant in the lavatory with one of the cash registers broken open. The change in it had been removed.

The employee called his employer who called the police and defendant was taken to police headquarters for booking. The officers were new to their duties and were uncertain as to the charge to be placed against defendant. Defendant told them it should be “first degree burglary.”

They searched defendant and found $16 in currency and $28.06 in change on him. The currency and 90 cents belonged to him. The officers testified that defendant told them that he obtained the balance of the change “out of the cash registers. By taking the plate off the big cash register in the pool hall over the small change drawer.” Both officers testified that defendant was not intoxicated when arrested shortly after 4:30 a.m. on October 18th.

An examination of the premises disclosed that a screen over one of the windows had been ripped open.

Defendant became a witness in his own behalf and testified that he was so intoxicated that he remembered nothing between about 11 o’clock p.m. on October 17th, and the time when he came to in the jail the next morning.

Two grounds are presented for reversal of the judgment: (1) Error in refusing to strike out an answer of one of the witnesses for the People, and, (2) alleged delay on the part of two jurors in returning to the courtroom after the morning recess on the second day of the trial.