People v. Warner

KAUFMAN, P. J. Defendant appeals from a judgment entered on a jury verdict finding him guilty of burglary in the second degree. The only contentions on appeal are that (1) the district attorney at the trial committed prejudicial misconduct in commenting on a question asked of the defendant by his own counsel; (2) the trial court erroneously admitted evidence relating to similar offenses. There is no merit in either of these contentions.

The record reveals the following facts: In February 1959, the appellant lived with one Joe Potter, in apartment Number 3 at 1223-34th Street in Oakland. The complaining witness, Lola Nolan, lived directly across the hall from apartment Number 3. On previous occasions, Mrs. Nolan had given the defendant permission to watch television in her apartment. On the evening of February 6, she asked the defendant to leave before midnight so she could go to sleep. When the defendant left, he was somewhat angry.

The next morning, February 7, Mrs. Nolan left her apartment about 7 a.m. and locked the front door; the back door of the apartment was locked by a slide lock on the inside. When she left, the television set was in the apartment. When Mrs. Nolan returned about 1:30 p.m., the television set was gone and the lock of her front door showed signs of tampering. The police arrived about 3 p.m. and found pry marks on the jamb of the front door as well as paint scrapings and chips outside the front door. Several days later, she asked the defendant about the television set; he stated he didn’t know anything about it and hadn’t seen anyone come up.

Frank Champion, the operator of the Paris Cleaners located about one block away from the apartment house, testified that about 2 p.m. on February 7, the defendant came into the shop with a television set. The defendant stated that the set belonged to him and that he wanted to borrow money on it, in order to take care of his daughter. The defendant signed an agreement permitting Champion to keep the television set as security and received $35. Champion kept the set until it was picked up by Inspector Roehl of the Oakland Police Department. At the trial, Mrs. Nolan identified the set as hers.

Inspector Roehl produced a statement taken from the defendant on February 18, in which the defendant stated that Mrs. Nolan had asked him to pawn her television set and had taken it with him the evening of February 6. He also stated he left the set with Champion for $35 and slipped the money under Mrs. Nolan’s door in an envelope. Mrs. Nolan denied [386]