People v. Smith

RICHARDS, J. pro tem.

*

Appeal from judgment of conviction by the court, a jury having been waived, of burglary in the first degree, from the verdict and from an order denying defendant’s motion for a new trial. The assignments of error are: insufficiency of the evidence, and error of the minute order of judgment reciting a conviction of first degree burglary.

Viewing the evidence most favorably to the respondent, the record discloses that John Rowan and his wife ran a variety store on Vermont Avenue in Los Angeles and about mid-afternoon, May 10, 1956, defendant and another man entered the store and walked to the center of the store, where the cash register was located, and asked Mr. Rowan the location of the dental paste. Mr. Rowan pointed it out and after they stood around that counter for three or four minutes, appellant then asked where to find the Mother’s Day cards. Mr. Rowan told them that the cards were at the front of the store and the two men walked to the card counter. In the meantime Rowan stayed near the middle of the store but overheard appellant make some disparaging remark about the quality of the cards. After some discussion between the two men and Mrs. Rowan, Rowan started toward the front of the store where the appellant and his companion were standing and when Rowan was about 6 feet away, they came around the end of the card counter and into the center aisle and at that time appellant’s companion was holding a gun and ordered Rowan to go to the rear of the store. Unintimidated, Rowan started towards appellant’s companion and as he did so, appellant hit Rowan in the jaw knocking him over onto

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the counter. Mrs. Rowan screamed and the two men ran out of the store and were subsequently apprehended.

Clearly, the foregoing evidence is sufficient to sustain the conviction of first degree burglary by reason of the assault on Rowan (Pen. Code, §460).

There is no merit in defendant’s contention that the evidence fails to disclose an intent to commit theft. The action of the men loitering near the cash register on the pretense of looking for dental paste; their actions in drawing Rowan to the front of the store by engaging into controversy with Mrs. Rowan about the Mother’s Day cards; their simultaneous approach on Rowan, one with a drawn gun, ordering Rowan to the rear of the store; the personal assault by defendant and their subsequent flight justified an inference that defendant’s original entry was to commit theft.