People v. McGilver

California Supreme Court

People v. McGilver

7 P. 49, 67 Cal. 55, 1885 Cal. LEXIS 542

CourtCalifornia Supreme Court

DecidedMay 22, 1885

DocketNo. 20069

StatusPublished

Cited by21 cases

This text of 7 P. 49 (People v. McGilver) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McGilver, 7 P. 49, 67 Cal. 55, 1885 Cal. LEXIS 542 (Cal. 1885).

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Opinion

Myrick, J.

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.” Ho 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 W empe’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 to connect the parties with the Wempe burglary, and for that reason was admissible.

Judgment and order affirmed.

Morrison, C. J., Sharpstein, J., McKinstry, J., Ross, J., and McKee, J., concurred.

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Myrick, J.

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.” Ho 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 W empe’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 to connect the parties with the Wempe burglary, and for that reason was admissible.

Judgment and order affirmed.

Morrison, C. J., Sharpstein, J., McKinstry, J., Ross, J., and McKee, J., concurred.

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Bluebook (online)

7 P. 49, 67 Cal. 55, 1885 Cal. LEXIS 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcgilver-cal-1885.

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