People v. Channell

• Decision Date: 11 October 1955
• Docket Number: Cr. 5403
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Harry Hambleton CHANNELL, Defendant and Appellant.

Page 326

288 P.2d 326

136 Cal.App.2d 99

The PEOPLE of the State of California, Plaintiff and Respondent, v. Harry Hambleton CHANNELL, Defendant and Appellant.

Cr. 5403.

District Court of Appeal, Second District, Division 3, California.

Oct. 11, 1955.

Hearing Denied Nov. 9, 1955.

William B. Beirne and Paul P. Selvin, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

Defendant was charged with the crime of burglary in that on December 1, 1952 he entered the house occupied by Robert Newman in Los Angeles with the intent to commit theft. The information alleged two prior convictions, one of burglary in 1918 and one of conspiracy and stealing from interstate shipment in 1944, 34 years and 8 years, respectively, prior to the alleged commission of burglary in Los Angeles. Defendant admitted the prior convictions. The cause went to trial on November 30, 1954. He was convicted by a jury of the offense charged and judgment was pronounced. He appeals from the judgment and the order denying his motion for a new trial. His principal assignment of error is that the court erred in overruling his objections and in denying his motion to strike the testimony of the People's witnesses relating to an alleged offense other than the one for which he was on trial.

The Newman home was located in that part of Los Angeles known as Pacific Palisades. It was on a corner in a residential district. A grass path ran along the west side of the house, across the front of which was a metal gate. Ingress to the rear could be had only by crossing the front lawn and proceeding through the gate and along the grass path. In the front and rear of the house, extending practically the entire width of the property, were grass lawns.

Mr. Newman's bedroom was in the southwest corner of the house. It had two large windows. Mrs. Newman's bedroom adjoined her husband's separated by a hallway. On the north side of her bedroom facing the rear lawn was a glass slider extending across practically all of the wall. The slider gave a full view of all the lawn to the rear of the house. A dressing room adjoined Mrs. Newman's bedroom, with a bathroom off from it. In Mrs. Newman's bedroom, dressing room, and bathroom there was a total of 75 drawers, 12 doors to closets and cabinets, with shelves in the cabinets.

Shortly after one o'clock in the afternoon of December 1, 1952 Mrs. Newman left her bedroom to go to the service porch which was about 80 feet from the bedroom. As she went through her husband's bedroom, she looked through one of the windows and saw an automobile parked at the curb. She went to the service porch, talked to her maid, and received the mail from the maid who went to the mailbox to get it. Mrs. Newman returned through the hallway, placed magazines on her husband's bed, walked to the window in his bedroom and looked at the automobile. It was a black, 4-door 1952 Cadillac. She then went into her bedroom and in the reflection in a mirror saw a man in the dressing room. She walked toward the dressing room and said, 'Who are you and what are you doing?' There was no reply. She moved closer and repeated the question. The man stood up and walked toward her. She identified defendant as the man. Then: 'He said he was from the telephone company and I said, 'I think there is a mistake because we haven't reported anything wrong with our phones.' He then said, 'Don't you have an extension in this room?' I said, 'Yes, if you wait a minute until I get rid of these magazines, I will show you where it is.' Then I went as fast as I could back to the laundry to get my maid.' She and the maid returned to her bedroom and no one was there. On her return, she noticed that the car was gone. She was in the man's presence just as long as it took to have that conversation. The drawers of her dressing table, of her dresser, and the glass slider, which previously had been closed, were open. Nothing was missing from the premises. Mrs. Newman testified she was pretty nervous at the time; she was very frightened; she was anxious to get out of the room, and all she could think of was to get out of the room very fast.

The maid testified that as she went to the mailbox she noticed a black car parket in the street and that when she and Mrs. Newman went to the bedroom and dressing room, all the drawers were open. No evidence with respect to fingerprint impressions was introduced.

There was no trouble with Mrs. Newman's phone at that time. Between November 18 and December 3, 1952, no complaint was received by the telephone company concerning service at the Newman home.

Walter Borner testified he was a service salesman for a Cadillac agency in Hollywood; a man named 'Robert W. Kirk' brought a Cadillac to the agency for service about 10 or 10:30 or around 11 a. m. on December 1, 1952; Kirk was defendant; Kirk had previously, on November 6, 1952, brought the car in for service and had told the witness he was staying at the Roosevelt Hotel; the car had Maryland license plates, No. 254-882; the work order of December 1, 1952 specified that the work would take about 3 hours and stated, 'Time promised. 4:30 p. m'; the bill was stamped 'Paid Dec. 1, 1952'; he did not see defendant pick up the car on that date; defendant picked up the car about 3:30 that afternoon. A floorwalker at the Cadillac agency testified he saw defendant there 'about the last of the year, about December' of 1952.

An attendant at the Hollywood Roosevelt Hotel Garage in Hollywood whose working hours were from 11 at night to 7 in the morning testified he made out various 'Daily Storage Sheets,' in evidence, dated November 27, 1952 through December 1, 1952; the sheets show that a Cadillac car with Maryland license plates, marked on the sheets 'Kirk--R. W.' of room 902 of the hotel, was stored in the garage at various times during that period. A sales manager of the Hollywood Roosevelt Hotel identified a Roosevelt Hotel guest registration card and a folio showing charges. These showed that someone had registered as 'Robt. W. Kirk' of 'Beacon Hall Farm, Chevy Chase, Md.' on November 27, 1952 at 5:05 in the evening and had left in the morning of December 2, 1952. The witness did not identify defendant as Kirk, and the signature and writing on the registration card was not proven to be that of defendant.

The evidence with respect to the offense other than the one charged in the information, admitted over defendant's objections, was as follows:

A Mrs. Fleming testified that about November 23, 1951 she had guests at her home in Palm Springs; they had toured her new home for about an hour between 1 and 2 p. m.; they all left for lunch at 2:15; she and her husband returned to the house 'around 3:30 to a quarter of four'; she went into her mother's room; all the dresser drawers had been opened and various items were on the floor; the Palm Springs police took fingerprints in the room and took a slip of paper on which the intruder had written his name and address (no evidence was introduced with respect to the fingerprints nor was the slip of paper produced at the trial); she did not see the intruder; her maid had moved into the house in September 1951 but she had not moved in until November 7, 1951.

Mrs. Fleming's maid testified she was employed in November 1951; some time in that month she found a stranger in the Fleming home; it was 'around 2:00, 2:30' p. m.; after Mrs. Fleming and the guests left she locked the front and back doors, turned all the lights off, went out to the terrace, collected some glasses and returned to the house; she was in Mrs. Fleming's mother's bedroom when she turned the lights out; as far as she could remember, the drawers of the dresser in that room were closed; she went out to the terrace again and saw a man about '60, 55, 60' in 'a very nice brown suit,' standing beside the door in the dining room; she had never seen him before; she asked him what he was doing there; he replied, 'Visiting the family'; she asked, 'What family?'; he answered, 'Robinsons'; she said, 'They don't live here'; she asked him for his identification card; he did not have any; she asked, 'How did you get here?'; he replied, 'A car'; she said, 'Where is your car?'; he answered, 'Parked across the street'; 'Well,' she said, 'I guess you'll have to write your name down * * * I'd like to have your name and address'; she 'got him a paper and pencil and he was trembling very badly, and he wrote his name, and I says, where is your address? And he wrote his address. And then I said, what state? He said, Pasadena. I says, well, please write it down. He was trembling so, he couldn't write. So I wrote the word Pasadena'; while she was talking to the man Mr. Renville rang the back door-bell; she went to that door and let him in; the man handed her the piece of paper after he had written on it; she did not see him do anything with the paper before he handed it to her. When asked whether she saw the man in the courtroom the witness said: 'There's a man down there looks like him; he looks familiar. * * * He looks very familiar. The man with the blue suit [indicating defendant].' She saw the man leave the premises; he left by the back door; he went to a large black car parked across the street; the man was in the house about 15 minutes; after Mrs. Fleming's mother came home about an hour later, she went into her bedroom; the drawers were all pulled out.

Ray Renville, a pest control operator, testified he had serviced the Fleming home for over a year before November 1951, weekly in the summer, and monthly during the remainder of the year; on each occasion he saw the maid; he was at the Fleming home in November 1951 about 3 p. m.; the maid let him into the house through the kitchen; he followed the maid into the dining room where he saw a man standing; the man was defendant; the maid asked the man ...