People v. Gardner

PEEK, J. Appellant and one Burke were charged jointly with violation of section 459 of the Penal Code. Following their pleas of not guilty the matter proceeded to trial before a jury which returned a verdict finding defendants guilty of burglary in the first degree. Gardner’s application for probation was denied and he was thereupon sentenced for the term prescribed by law. He alone now appeals, contending (1) that the judgment is not supported by the evidence, (2) that the court erred in admitting in evidence the confession of his codefendant Burke in that it was not free and voluntary, and (3) that the trial court committed prejudicial error in its instructions as to the evidentiary effect of Burke’s confession. None of said contentions appear to be well founded.

The evidence, viewed as we must in the light most favorable to respondent, shows that some time between the hours of 8 o’clock p.m. and 4:30 o’clock a.m. on the night of January 27, 1951, a room occupied by one Carminati in the city of Santa Rosa was entered feloniously and various articles of personal wearing apparel as well as two pocket lighters and $50 in cash were taken therefrom. Two days after the alleged burglary some of the stolen articles were observed in the possession of Gardner in his room in a San Francisco hotel. Appellant had been on friendly terms with Carminati for approximately two years and was acquainted with the premises occupied by him in Santa Rosa. On February 28, Gardner was apprehended at his place of employment in San Francisco and taken to the county jail for questioning, and on the following day was released at the request of Sonoma county officers. Following his release he checked out of the San Francisco hotel where he had been staying immediately following his first questioning by the police and was not appre[247]hended until approximately one month later when he was identified in a routine police “show up” following his arrest on a charge of vagrancy. At that time he was using an assumed name. He was then wearing a pair of shoes which were identified by Carminati as similar to those stolen from his room. Gardner admitted to one Wilson, a witness for the prosecution (who was then being held in the Sonoma county jail on a different charge) that he and Burke, his codefendant, had driven to Santa Rosa on the evening of the alleged crime and that they had gone to Carminati’s residence at approximately midnight and taken the clothing. Appellant also stated to Officer Reeves of the Sonoma county sheriff’s office that he had participated in the burglary; that if his bail could be reduced thereby enabling him to be released he could recover some of the stolen articles; that Carminati would be paid for what he could not recover, and that he would make a statement concerning the burglary to Reeves. The officer further testified that he obtained a reduction of Gardner’s bail but that appellant, after talking to his father, informed Reeves he would make no statement, that he wanted to plead not guilty and talk to an attorney. At the time of the trial appellant, testifying in his own behalf, sought to establish an alibi that at the time of the theft he was at his father-in-law’s home in Oakland. Although his father-in-law corroborated his testimony in this regard the testimony of his sister-in-law and his mother-in-law was directly to the contrary and to the effect that he was not at their home that week end.