People v. Ambrose

• Citation: 318 P.2d 181,155 Cal.App.2d 513
• Decision Date: 26 November 1957
• Docket Number: Cr. 5924
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank AMBROSE, Defendant and Appellant.

Page 181

318 P.2d 181

155 Cal.App.2d 513

The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank AMBROSE, Defendant and Appellant.

Cr. 5924.

District Court of Appeal, Second District, Division 1, California.

Nov. 26, 1957.

Rehearing Denied Dec. 19, 1957.

Hearing Denied Jan. 23, 1958.

Samuel C. McMorris, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Herschel T. Elkins, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County, defendant was accused in four counts of the crime of burglary. Prior convictions of attempted burglary and burglary, both felonies, committed in the State of New York, and for which defendant served terms of imprisonment, were alleged.

Defendant pleaded not guilty as to each count of the information and denied the prior convictions. Trial by jury was duly waived and it was stipulated that 'the case for the People in chief be submitted to the court on the transcript of the evidence taken at the preliminary hearing * * *. Thereafter, * * * either side may present further evidence, including the express right of the defendant to cross-examine all officers not only on the basis of their testimony given or for the proceedings here but, counsel, we would stipulate he may use the transcript of the preliminary hearing not only in the case which has resulted in this case being before the Court but also that previous preliminary transcript.' The prosecution reserved 'all rights as to objections to testimony given in the transcript'. Evidence in addition to that given at the preliminary examination was introduced. Defendant was adjudged guilty of burglary as charged in each count, which the court found to be burglary of the second degree. The prior convictions were found to be true. Defendant's motion for a new trial was denied, and he was sentence to State Prison. From the judgment of conviction and from the order denying his motion for a new trial, defendant prosecutes this appeal.

Count I charged burglary of the residence of Shelton Riley and Arthur F. Walker, at 1228 W. 65th Place, Los Angeles, on May 19, 1956. A decanter, $18, a gold watch (People's Exhibit 1), and 4 bow ties were stolen.

Count II alleged that on September 14, 1956 defendant burglarized the residence of Mrs. Irene Harrington, 2207 W. 73rd Street, Los Angeles, resulting in the theft of a Bolsey camera (People's Exhibit 2), a case and a flashlight.

Count III accused defendant of burglarizing the residence of Mr. and Mrs. Garcia, 1358 W. 70th Street, Los Angeles, between the dates of September 20 and 22, 1956, in which 2 watches and some money from a piggy bank were stolen.

Count IV charged that on July 15, 1956 defendant burglariously entered the residence of Edith Nelson, 9606 LaSalle, Los Angeles, and stole therefrom a movie camera, an index box, a carton and a half of cigarettes, and a ring (which was onyx with a small diamond--People's Exhibit 4).

Concerning the factual background surrounding this prosecution the record reveals that about 8:05 p. m. on the evening of September 27, 1956, police Officer Neal, accompanied by Officer King, was driving a police automobile on 69th Street in the city of Los Angeles when Officer King saw defendant walking on the sidewalk. The latter's jacket pockets were 'bulging and a flash-light and a pair of gloves sticking out of his right jacket pocket'. Officer King pulled over to the curb and said, 'Police officers.' Defendant continued to walk. The two officers got out of the automobile and Officer King called out, 'Police officers, stop.' After Officer King had repeated this phrase about three times defendant halted. The officer asked him for identification. Defendant stated he had none. The officers inquired as to where defendant lived. In the police report (introduced as People's Exhibit 6), it is stated that the defendant gave 1569 W. 69th Street as his address. He stated that he worked in a garage and that he was going to visit a friend named Finnerty.

Officer King arrested the defendant and searched him, finding on his person a screw driver and two brown paper bags. The officers asked defendant to be seated in the rear of the police vehicle, at which time he fled. He was apprehended and taken to the police station. When they arrived at the police station, Officer King observed that defendant was not wearing two rings which the officer had observed on him at the time of his arrest. The two rings (People's Exhibit 4), and a little gold ring, were found by the officer near the rear door of the police vehicle. Officer King asked defendant what he had done with the rings and the latter answered that he had thrown them out of the police car.

On October 2d, Officer Hausman, a Los Angeles Police Officer, and Officer McGinty went to the Olive Hotel at 750 South Olive. Room No. 5 in this hotel was registered to the defendant. The room was registered in only one name. The officers asked the hotel manager, Harry Hartsook, for authority to enter the room. Mr. Hartsook opened the door and let them in. After this first visit, Officer Hausman went to the jail, picked up defendant, and took him out to the hotel. This second visit to the hotel was a 'matter of hours' after the first visit.

Officer Hausman, in the presence of defendant, opened the door. When they had entered the apartment, Officer Hausman and defendant had a conversation. The officer said, 'Look, there is a lot of stuff here. Now, you tell us which is stolen and which is not, and we will put the stolen stuff in one pile and it will save us a lot of trouble.' The defendant said, 'All right.' The officers then followed this procedure: One would pick up an object and say to the defendant, 'Is this stolen?' To some of these queries, defendant would say, 'Yes,' and to others he would say, 'No.' Two watches (People's Exhibits 1 and 3) and a camera (People's Exhibit 2) were identified by the defendant as being stolen property.

The following day, October 3d, Officer Hausman and defendant drove to various addresses.

They went to 1228 West 65th Place. (Count I) In response to Officer Hausman's question as to whether he recalled that place, defendant said, 'Yes, I went through the back door. I got some liquor and some--and bow ties from that place.'

They drove to 2207 West 73rd Street. (Count II) In response to Officer Hausman's inquiry as to whether defendant remembered that house, the latter said, 'I went in there through a window. I think I got a camera there.'

They proceeded to 1358 West 70th Street (Count III) and when asked if he recalled that location, defendant replied, 'Yes, I went in the front window. I got some change and a watch that was shaped like a horseshoe.'

These statements of defendant were made freely and voluntarily and without any threats or promises of any sort.

At the 77th Street Jail, Officer Hausman asked defendant, 'Where did you get the black ring that had the white setting in it, * * * that was found on your person at such time as you were arrested?' The defendant said he took it from a house, not 'too far in the past' but he didn't recall which house it was.

Following a preliminary examination on October 10, 1956 defendant was discharged. A second complaint was obtained and after preliminary examination he was held to answer and the instant trial ensued.

As a witness in his own behalf defendant testified that he was walking on 69th Street at about 8 p. m. on September 27, 1956. He had a flashlight, gloves and a screw driver in a paper bag which he was carrying. He saw lights directed towards him and heard someone say something, but he paid no attention to the sound. An officer then arrested him and asked where he worked, what he was doing in the neighborhood and if he had any identification. He told the officer that he had no address, that he was a transient, and that a friend of his lived in the neighborhood. He was questioned again but refused to say anything more. Officer King then kicked him and he ran. That night he did have some rings on his fingers, but in the police car, he took them off and, at the request of police officers, handed them to the officers.

At a later date, he, in company with police officers, went to 750 South Olive. Upon arriving, an officer asked a clerk for the key to Room 5. The clerk said he could not give him the key but that he would summon the manager. The manager gave to the officer a pass key to the room. Room 5 was his room; he was registered under the name of Fontaine. Officer Hausman and Officers King and Neal walked with defendant to Room 5. Officer Hausman opened the door with the key and told him to enter. Defendant further testified that at no time did he give his consent for the officers to enter his room, nor did he authorize the hotel manager or anyone else to permit the officers or any other person to enter his room.

As his first ground for reversal appellant urges that the court erred in its rulings on the admission and exclusion of proffered evidence in that it,

'a. Sustained objections to impeachment questions;

'b. Sustained objections to the introduction of a transcript;

'c. Erred in admitting an exhibit.'

In this regard appellant asserts that Officer King testified that the former started to run when requested to go to the police station for investigation. On cross-examination appellant inquired of the officer as to whether he had testified at the first preliminary examination and on receiving an affirmative reply, appellant's counsel asked, 'And at that time you did not mention anything about running, did you?' Objection was made on the ground of immateriality 'unless there was a showing there was a question asked to which there was a negative response'. The objection was sustained. Then the following question was propounded:

'By Mr. Graves (appellant's counsel): Was the statement you made in the police report in fact true,...