Summary
In People v. McGilver, 67 Cal. 55 [7 P. 49], the burglary was charged to have been committed by entering the house of H. Wempe.
Summary of this case from People v. D'AntignacOpinion
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
John D. Whaley, for Appellant.
Attorney-General Marshall, for Respondent.
JUDGES: In Bank. Myrick, J. Morrison, C. J., Sharpstein, J., McKinstry, J., Ross, J., and McKee, J., concurred.
OPINION
MYRICK, Judge
The appellant McGilver was accused jointly with one Mark M. Lay of the crime of burglary, committed by entering the house of H. Wempe on the 14th of June, 1884, with intent to commit larceny. The appellant was separately tried
On the trial one G. Wempe gave evidence concerning the ownership of the house. He stated: "My father owns the house." "It is my father's and mother's; my father owns the house; "" the deed runs to my father and mother; my father and mother both own the lot, and my father and mother built the house; my father and mother own the house." No evidence was given as to the first name (or initial thereof) of the owner; the owner was spoken of in the testimony as Mr. Wempe. The point is made on this appeal that the owner's name should have been proved as laid, and that the omission to prove that H. Wempe was the owner is fatal. It was competent for the jury to presume from the evidence of G. Wempe that his father's name was Wempe, and that he was in possession of the building, for the purposes of the prosecution; it does not appear that the elder Wempe's name was not H. Wempe, as laid; therefore a variance does not appear. (§§ 956, 1404, Pen. Code; State v. Black, 31 Tex. 560.)
It is claimed that the court erred in admitting evidence that McGilver and Lay, at the time of their arrest, were attempting to break into a jewelry store, a day or two after the burglary in question, and that the officers found burglars' tools in Lay's possession. In addition to the burglars' tools, the officers found on the person of each of the arrested parties articles which were identified as having been taken from Wempe's house. We see no error. The evidence tended [7 P. 50] to connect the parties with the Wempe burglary, and for that reason was admissible.
Judgment and order affirmed.