People v. Mack

GRIFFIN, J. Defendant and appellant was charged with and convicted by a jury of the crime of burglary (second degree) of a dwelling house, committed on September 9th, 1956, in Mendota. The jury also found he had suffered two prior felony convictions and served time therefor in the state’s prison. Defendant had different court-appointed counsel at the time set for his preliminary examination and in the proceedings before the trial court. He successfully removed two such appointed attorneys from his case by motion, and under due admonition of his rights to the aid of counsel, he decided to conduct his own jury trial. Later, another attorney was appointed to represent him. During the trial, with defendant’s permission, this counsel moved to be relieved as defendant’s attorney. Defendant insisted on conducting his own case. The court ordered the court-appointed attorney to sit [529]in the courtroom to advise defendant, if defendant so desired. Witnesses were sworn and examined, including the defendant. Judgment upon the verdict, as indicated, was pronounced.

On this appeal the evidence shows that the complaining witness left his home Saturday afternoon on September 8th. He locked the front but not the back door. On his return Sunday afternoon he discovered his clothes thrown about the bedroom, his deer rifle, automatic rifle, watch, jewelry and two storage batteries were missing. He called the constable. He later identified the missing property which was in the constable’s custody. A prosecution witness testified that at about 4 a. m. on September 9th, he was delivering the papers on his route and found defendant and another person (Mason) stalled in their old convertible car on the road about 200 feet east of the complaining witness’s home; and that he assisted in starting their car by pushing it with his car. He identified them in court as the persons he saw that night. Defendant and Mason were later apprehended by the constable. Defendant first denied any participation in the burglary. When confronted by Mason, who had admitted the burglary, defendant said: “Well, maybe we just as well plead guilty . . . and get it over. ’ ’ Defendant took the constable to a junk yard where defendant had buried the gun. The constable dug it up and defendant stated he didn’t want to see the complaining witness lose anything and wanted the stolen property returned to him. The watch and some of the jewelry were pointed out by defendant. They were hidden in a paper bag under the fender and headlights of his car. Most of these facts were corroborated by another officer. The accomplice Mason testified he was driving with defendant in his old car on the morning of September 9th before daylight; that the car overheated and would not run so he and defendant went to the complaining witness’ home for water, found the screen door unlocked, and went in and burglarized the house, took the guns, jewelry and batteries which were identified by the complaining witness, and returned to the car; that they found it would not start and a man came by and pulled them onto the road and started their car by pushing it with his car; that he sold one of the guns taken from the complaining witness’s house and that they had been drinking to some extent that night.