People v. Means

VAN DYKE, J. Elijah Means, and appellant Hurtha Winn were charged with the crimes of burglary and robbery alleged to have been committed in the City of Vallejo. Defendants entered pleas of not guilty as to each count and the case was tried before a jury, which returned verdicts of guilty as to each defendant on both counts. Probation was applied for by Means and was denied. He was then sentenced to imprisonment in the county jail for a term of [298]one year. Appellant Winn, being 18 years of age, was committed to the Youth Authority of the State of California for the term prescribed by law. Both appealed, but the appeal of Means has, at his request, been dismissed.

No contention is made that the evidence was insufficient to support the verdicts of the jury. A brief statement of facts, substantially shown by the record, will be sufficient to dispose of the contentions made. These contentions are that the court erred in denying appellant’s motions, for mistrial, and for directed verdicts of acquittal. The motions for mistrial were based upon certain alleged inflammatory and derogatory statements made by the prosecuting attorney.

The record discloses that A. M. Martin, a man 72 years of age, operated a grocery store in Vallejo and that on January 5, 1950, the two defendants, together with a third man, entered the store during the early afternoon. They moved about the store and made some purchases. One of them gave Martin a bill to change, whereupon he went into his living quarters in the rear of the building for that purpose. His living room was separated from the store by a drawn curtain, and while he was in it the three men watched him through this curtain. After they had left, Martin discovered that money was missing from a certain billfold. On the next day the same three men again entered Martin’s store and acted much as they had the day before, but one of the three went into the back rooms and Martin, becoming suspicious, followed and discovered the man to be ransacking bureau drawers. The two other men then followed and the three threatened to beat Martin and to kill him. They threw him on the bed and continued to search the room. They attempted to force him to disclose the location of his money. Failing in this they took a bag of small change. They pulled the telephone off the wall. They then took money from the cash register and left.

The first assignment of prejudicial misconduct of the prosecuting attorney was made when, during the course of the trial and while appellant Winn was on the witness stand under cross-examination concerning a conversation between him and a police officer, the following occurred: “Q. Then prior to the 11th of January, 1950, had you ever talked to Lieutenant Booras ? A. No. . . . Q. Then you did not know his voice, if you had not talked with him before? A. He talked it to me from Sutter Street—from Illinois and Sutter all the way to the Police Station. And I wouldn’t recognize