People v. Howell

MUSSELL, J.

Defendant was charged with burglary in violation of section 459 of the Penal Code in that on or about the 9th day of July, 1953, he entered the residence of one Linda Starr Utley, in El Centro, with intent to commit theft, A jury trial was had and a verdict of guilty returned, in which the jury found the degree to be burglary in the second degree. Motions for a new trial and in arrest of judgment were filed, heard and denied, and defendant was sentenced to the state prison. He appeals from the judgment of conviction and from the order denying his motions for a new trial and in arrest of judgment.

The question here presented is whether the evidence is sufficient to justify the verdict and judgment.

In June, 1953, the complaining witness, Linda Starr Utley, a dancing teacher, resided with her mother, Mrs. Gale, at 483 Wensley Street, in the city of El Centro, and conducted a studio at 588 Broadway, in said city. During the first week of June, 1953, defendant was hired through an employment agency to clean the office and studio and to cut the lawn at the Wensley Street residence. He was inside the house on one occasion and was informed by Mrs. Gale that she and her daughter were going away for the summer. The ladies went to Los Angeles for a vacation and on their return on July 31, 1953, found that their home had been entered in their absence and without their permission. The furniture was disarranged, beds were overturned, and drawers were left partly open. The kitchen stove and refrigerator had been unplugged. The kitchen windows were open and had been forced in. A screen from one window was lying outside on the ground and it had been forced loose from its hangers by a screwdriver or a similar instrument. Several articles

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of personal property belonging to the complaining witness had been stolen, including a jewel box with contents of costume jewelry, other pieces of costume jewelry, a pencil, pieces of dancing costumes, and articles of clothing. A white beaded purse belonging to Mrs. Gale was also missing. All these articles were recovered by the officers and identified by Mrs. Utley and her mother. On or about July 8, 1953, defendant was seen by one Valencia at the Utley residence and was then informed that Mrs. Gale and her daughter had gone for the summer and that they would not be back until about September.