People v. Burns

WOOD (Parker), J.

Defendants Burns and DeCosta were accused of burglary, committed by entering an automobile, the doors of which were locked. Burns admitted an allegation in the information that he had been convicted previously of a felony. In a trial by jury the defendants were found guilty of burglary in the second degree. Burns was referred to the California Youth Authority. DeCosta’s application for probation was denied, and the judgment was that he be imprisoned in the county jail for one year. He appeals from

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the judgment and from the order denying his motion for a new trial.

Appellant contends that the verdict is contrary to the evidence and the law; the court erred in receiving extrajudicial statements in evidence, and erred in instructing the jury.

On January 1, 1952, two police officers in an automobile were patrolling an area near the Pasadena Bose Bowl, where automobiles were parked by persons who were attending the football game. The automobiles were parked in double rows with lanes between the double rows so that the automobiles could be driven from the parking area. In the front row of one of the double rows there was a Buick four-door sedan automobile, facing south, which had an Illinois license plate on it. In the rear of that double row and directly behind' the Buick automobile there was a Pontiac automobile which was facing north. The backs of the two automobiles were about 4 feet apart.

One of the officers testified that he was driving the police automobile in a westerly direction in the lane near the Buick; when he was about 30 feet from the Buick, he saw the appellant who “kind of raised up” behind the Buick, stood facing the officers, and moved his lips; appellant then turned around and walked to the Pontiac, which had “a lot of people” in it; he (witness) stopped the police automobile and the other officer got out, walked between the Buick and Pontiac and talked to appellant; about 2% minutes later the left front door of the Buick opened and defendant Burns got out of the Buick; he (witness) immediately got out of the police automobile and questioned Burns; Burns stated that he was not the owner of the automobile—he was in the automobile waiting for the people who owned it to come back from the football game; he (witness) examined the Buick and saw that the left windwing was broken; scattered glass was on the front seat, and glass was on the running board; the glove compartment was open, a flashlight was on the floor, and a leather carrier for camera bulbs was open on the front seat; a suitcase was open on the rear seat; also a checkbook, letters, papers and miscellaneous articles were on the rear seat. He also testified that he and the other officer had a conversation with the defendants at the police station; appellant, in the presence'of Burns, said that he left the Pontiac, went for a walk, returned to the rear of the Pontiac and was “looking for what was making a rattle”