People v. Jackson

SCHOTTKY, J. Lester Farrel Jackson and Howard Allen were charged by information with the crime of burglary. The superior court granted their motion to set aside the information upon the ground that they had been committed for trial without reasonable or probable cause. Upon appeal this court reversed the order of the trial court (146 Cal.App.2d 553 [303 P.2d 767]) and the said defendants were tried and found guilty. They have appealed from the judgments pronounced upon the jury verdicts.

Appellants do not challenge the sufficiency of the evidence to support the convictions, but their sole contention is that “the conduct of the district attorney in commenting to the jury in his rebuttal argument concerning the failure of defendant Allen to testify in this case amounted to prejudicial misconduct, inasmuch as it was made at a time when the defendant did not have another opportunity to explain why he failed to testify or to defend himself.” Before discussing this contention we shall give a brief summary of the evidence.

Mrs. Monica Ney, a resident of Alameda, California, owned a frame two-story dwelling on the old Sonora Road and Twenty-Six Mile Road in Stanislaus County which was unoccupied at the time of the commission of the offense charged. When Mrs. Ney visited the premises on March 3, 1956, she discovered the front dining room door and the back door open, the contents of the house disheveled, and numerous items missing.

Various items which had been taken from the premises were consigned by defendants Jackson and Allen to a used furniture auctioneer in Hayward on March 2, 1956. Those items [625]not sold were picked up by Jackson and Allen and were sold by them to another antique shop operator in Stockton.

In his negotiations with Mr. McCoy, the dealer in Hayward, defendant Jackson signed his name “Lee Jakson,” the latter part of the signature being almost illegible. In his dealings with Mrs. Sasselli, the dealer in Stockton, he gave his name as H. Johnson.

In a conversation with Mr. Bates, a member of the Stanislaus County sheriff’s office, Jackson made numerous inconsistent statements. He first denied ever having sold any furniture to Mr. McCoy, but upon further questioning admitted that he had made such a sale. He said he had purchased them from a man known as H. Green. Jackson and Bates went to the defendant’s home where he produced a bill of sale purported to be signed by one H. Green.