People v. Cole

PEEK, J. By separate indictments the defendants and appellants Cole and Lambert were charged in Count I thereof with the crime of burglary and in Count II with conspiracy with the defendant O’Donnell and one Neeley, to commit burglary. Defendant Cole was also charged with five prior felony convictions and defendant Lambert with two prior convictions. The actions were consolidated for trial, and at the conclusion thereof the jury rendered verdicts finding both Cole and Lambert guilty of burglary in the second degree and of conspiracy as charged in the indictments. The motions of Cole and Lambert for a new trial were denied. A like motion of defendant O’Donnell was granted upon the insufficiency of corroboration of the testimony of the admitted accomplice Neeley. Thereafter judgments were entered pursuant to the jury verdicts against Cole and Lambert and they now appeal from said judgments and from the orders denying their motions for new trial.

The record shows that between 11 p. m. on the evening of March 12, 1956, and 7 a. m. on the morning of March 13, 1956, a window in a Red Bluff jewelry store was broken and 26 watches were removed, together with the boxes in which they were displayed. The accomplice Neeley testified that about 2 or 3 a. m. on the morning of March 13, 1956, he and the defendants Cole, Lambert and O’Donnell left Redding and drove to Red Bluff in Cole’s automobile; that when they reached Red Bluff, Cole stopped the car in front of the jewelry store. O’Donnell and Lambert got out of the car. Lambert then walked to the next corner and O’Donnell walked over to the store, broke the window with a hatchet and removed some 26 watches. They th.en drove to a point 7 or 8 miles away from Red Bluff where they threw the boxes away and proceeded on to Neeley’s apartment in Sacramento where Lambert hid the hatchet used in the burglary. From Sacramento they drove to Vallejo and Oakland, where some of the watches were pawned, and then to San Francisco.

According to police officers, on March 13 Neeley was seen to pawn or sell a woman’s watch in a pawn shop on Third [27]Street in San Francisco. He was also seen with Lambert in the vicinity of Third and Mission Streets, and a short while later was seen in Cole’s automobile. Shortly thereafter Lambert sold a watch for $6.00 in another pawn shop in the same vicinity. When accosted by an officer he gave his name as Jimmy Carter, but later admitted his true name. When he was searched a watch of the same type he had just sold was found on his person. Lambert was then taken to the police station and booked. When the other two defendants and Neeley were apprehended, Neeley and Cole were placed in the rear seat of the police ear and O’Donnell was placed in front. The car was searched a short time thereafter and a watch was found under the rear seat where Cole had been sitting. After Cole’s car had been impounded, it was searched by Bed Bluff police officers who found fragments of glass and a price tag therein. An expert who compared the glass fragments with some from the broken jewelry store window, testified that they were identical. The tag was identified by one of the coowners of the store as having been attached to one of the stolen watches prior to the burglary. The hatchet used in the burglary was found under Neeley’s bed in his Sacramento apartment. The boxes in which the stolen watches had been displayed were found a short distance from Bed Bluff and were identified by one of the store owners as those taken from the jewelry store. None of the defendants testified in their own behalf, nor was any evidence offered by them.