People v. MacHen

CONREY, P. J.

Upon trial before the court without a jury the defendant was convicted of the crime of attempted burglary. He appeals from the judgment, and “from an order denying a new trial”. The record does not show that there was any motion for a new trial, or any order denying such motion.

As grounds for his appeal from the judgment appellant contends: First, that the evidence was insufficient “to justify the verdict”; and second, that the court erred in

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pronouncing judgment on the defendant for attempted burglary in the first degree after the court had found the defendant guilty of attempted burglary of the second degree.

Although the evidence tending to prove the attempted burglary by the defendant is in large part circumstantial, nevertheless the facts established by such evidence were legally sufficient to justify the decision of the court. The charge upon which the defendant was convicted was that he attempted to break into an apartment occupied by one Charles Hast in an apartment house. The evidence showed that some person without permission of the owner had made a small hole through a window screen of the Hast apartment and had pried open the hook which held the screen. There is also testimony that at the time of defendant’s arrest on the evening in question he had his hands raised up against the screen of another window farther along in the wall of the building—this being not a window of the Hast apartment. These and other circumstances showing defendant’s unauthorized presence on the premises are sufficient to justify the conviction. The excuse offered by the defendant, if believed by the court, might have been a good defense. But the court evidently did not believe that testimony, and its decision on the facts cannot be further reviewed on this appeal.

At the close of the trial on September 26, 1934, the defendant was adjudged guilty as charged, and September 28th was set as the time for pronouncing sentence. The minutes of the case on September 28th contain the following entry: “Defendant waives time for sentence and orally applies for probation. The court finds the crime to be attempted burglary of the second degree.” The matter of passing on the application for probation and the pronouncing of judgment were postponed to October 10th, on which date the application for probation was denied and the court found the crime to have been attempted burglary of the first degree. Sentence was pronounced accordingly, as for attempted burglary of the first degree. It is now contended by appellant that when the court made its finding of September 28th, that the crime was attempted burglary of the second degree, and entered its order to that effect, this amounted to an acquittal of the crime of first degree at