People v. Mackey, Cr. 2943
| Decision Date | 25 June 1959 |
| Docket Number | Cr. 2943 |
| Citation | 340 P.2d 688,171 Cal.App.2d 513 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of State of California, Plaintiff and Respondent, v. Edward Neal MACKEY and Kinnon Wilks, Defendants and Appellants. |
Rudolf H. Binsch, Sacramento, for appellants.
Stanley Mosk, Atty. Gen., by Doris H. Maier and Robert K. Puglia, Deputy Attys. Gen., for respondent.
This is an appeal by defendants from a judgment of conviction following a jury verdict finding them guilty of burglary in the first degree. Both defendants represented themselves at the trial although counsel was appointed by the court for the purpose of consultation and advice. On appeal, pursuant to their request, counsel was appointed to represent them.
No question is raised on appeal concerning the sufficiency of the evidence to support the judgment. The errors alleged relate to the introduction of rebuttal evidence by the prosecution and the denial of defendants' motion for a continuance.
The record shows that on the night of August 18, 1958, Boomer's Sport Shop in Laytonville was burglarized. Entrance was gained through a window which had been broken. Missing from the shop were four rifles, five other guns, a metal box containing fishing and hunting licenses, and a roll of pennies. Several persons identified defendants and a third man as having been in the vicinity of Laytonville and the sport shop on the day of the burglary. On August 23, 1958, defendant Mackey was arrested in Tucson, Arizona. On his person was found a .38 caliber revolver, and in the rear seat of his car were two new rifles. Defendant Wilks was present at the time of the arrest and stated to the officers that the rifles were his. He was later arrested when it was found that the rifles had been reported stolen by the California authorities. The two rifles stated by Wilks to have been his, and the revolver found in Mackey's possession were all identified as having been among those stolen from the sport shop.
On cross-examination Mackey testified that he and Wilks had gone to the home of his cousin, R. J. Rucker, but denied that he had taken the rifles to Rucker's house. Wilks testified that they had gone to the cousin's home but that no one was there and that Mackey had gotten out of the car but that he, Wilks, had not. In rebuttal the prosecution offered in evidence the two rifles which were identified as having been stolen from the sport shop and had been found in Rucker's house in a closet together with some of Mackey's clothes. These rifles were admitted into evidence against both defendants and over the objection of Mackey that it was improper rebuttal evidence and that there was insufficient foundation to tie the evidence into the case, and over the objection by Wilks that there was not sufficient foundation to connect him with the evidence. Both objections were overruled.
Defendants' first contention is that the court erred in admitting into evidence on rebuttal the two rifles taken from Rucker's home. It is argued that the rifles were properly a part of the prosecution's case in chief and that it was therefore error to admit them into evidence on rebuttal under the guise of impeachment. In support of such contention defendants rely primarily upon the case of People v. Carter, 48 Cal.2d 737, 312 P.2d 665, wherein the court stated the rule to be in part that 48 Cal.2d at pages 753-754, 312 P.2d at page 675.
Here however the prosecution in its case in chief had introduced ample evidence to establish the commission of the offense charged and that defendants were at the scene of the crime shortly before it was committed. There was further evidence that defendants were in possession of some of the stolen goods. The two rifles from Rucker's house were not crucial to the prosecution's case. While the evidence so introduced was cumulative to that already introduced which showed possession of the stolen articles, its primary value was...
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