People v. Romero

A jury found defendant guilty of first degree burglary. He appeals from the ensuing judgment.

Appellant asserts that his arrest was without probable cause, and that thus a key and some money found upon his person in a search incident to the arrest were improperly admitted in evidence. Testimony showed that the home of Mr. and Mrs. Scurich, in Watsonville, was entered at about 2:15 a. m., and that money and some other objects were taken from Mrs. Scurich’s purse. Mr. Scurich saw the burglar briefly, and described him to police officers as small, wearing light colored trousers, and having no hat. The officers who re

Appellant also argues that Ms arrest was improper because the arresting officers did not inform him “of the cause of the arrest” as required by law (Pen. Code, § 841). But the rule is clear that this failure is wholly collateral to the securing of evidence by a search incident to the arrest (People v. Maddox, 46 Cal.2d 301 , 305 [ 294 P.2d 6 ]). It follows that the articles found on appellant’s person were properly admitted in evidence.

Appellant contends that the trial court erred in failing to give a requested instruction that where circumstantial evidence is susceptible of two constructions, both reasonable, the jury must adopt the construction pointing to innocence, rather than guilt. The rule is settled that such an instruction must be given by the court on its own motion when the evidence of guilt is wholly circumstantial (People v. Merkouris, 46 Cal.2d 540 [ 297 P.2d 999 ] ; People v. Bender, 27 Cal.2d 164 [ 163 P.2d 8 ] ). Here there was no direct evidence that appellant committed the burglary charged. Thus the court was required to give a proper instruction, and deficiencies in the form of the instruction requested by appellant are immaterial. Failure to cover this subject in the instructions was error but, in our opinion, was not prejudicial in this case.

When arrested, appellant had in his pocket a key which had been taken from Mrs. Scurich’s purse. This evidence,

Appellant also complains of the admission of evidence tending to identify him as the person who sought to enter the Lynn home. The fact that evidence tends to establish an offense other than that for which a defendant is being tried does not, of itself, render such evidence inadmissible (People v. Peete, 28 Cal.2d 306 [ 169 P.2d 924 ]). Here the questioned evidence placed appellant near the Seurieh residence only a short time after the burglary there, and tended also to explain the lapse of some 20 to 30 minutes between the Seurieh burglary and the appearance of appellant across the street from that home. Appellant attacks the admission of this testimony principally upon the ground that it was given before there was evidence implicating appellant in the Seurieh burglary, the offense charged. The reverse order generally is preferred (People v. Albertson, 23 Cal.2d 550 [ 145 P.2d 7 ]). However, the order of proof is largely in the discretion of the trial court (Code Civ. Proc., § 2042; Pen. Code, § 1094; People v. Hinshaw, 40 Cal.App. 672 [ 182 P. 59 ]). We find no abuse of discretion, and no prejudice to appellant, in admitting the Lynn evidence early in the case.

Appellant’s final contention is that the court erred in permitting respondent to “impeach its own witness.” On direct examination, one of the arresting officers testified that appellant was “booked” for investigation of burglary and vagrancy. On cross-examination, he said the arrest was made for vagrancy. On redirect, he was asked for what offense or offenses the arrest had been made. It is true that counsel on both sides then discoursed at some length on the subject of impeachment of one’s own witness. However, there was

The judgment is affirmed.

Kaufman, P. J., and Dooling, J., concurred.