People v. Mattmueller

GBIFFIN, J.

The appellant was charged with the offense of burglary in an information containing two separate counts. The first count alleged generally that on or about the 1st day of October, 1937, he burglarized a certain office and warehouse of the Carlsbad Feed & Fuel Company. In the second count he was similarly charged with burglarizing, on the same date, the office building of the Carlsbad Mutual Water Company. Both buildings were located in Carlsbad, a few blocks distant from each other. To this information and each of the respective counts thereof, the appellant entered a plea

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of not guilty. Upon the conclusion of the trial by a jury, the appellant suffered a conviction on both counts of the information. The degree of the offense as stated in each count, was fixed as burglary of the second degree. Judgment was thereafter pronounced and a motion for a new trial was denied. The appeal here perfected is taken not only from the judgment but also from the order denying a motion for a new trial.

This ease was previously presented to this court for decision on an appeal from an order granting a motion for a new trial after conviction by a jury. (25 Cal. App. (2d) 418 [77 Pac. (2d) 504].)

A goodly portion of the evidence produced against the appellant may be tersely classified as circumstantial evidence. The attorney-general has not favored us with a brief in this case although the time for filing one has long since passed. However, the factual background, taken from the record, may be thus related.

On the evening of October 1, 1937, some time between the hours of 5:30 P. M. and 6:30 A. M. of the following day, the feed and fuel supply warehouse referred to in the information was entered and burglarized. The entry was made through the rear of the warehouse by using an ordinary wood-bit and drill. By the use of the bit a series of holes were drilled through the wooden walls until finally a section of board was removed (later received in evidence), sufficient in size to permit the entry of an individual. There was a tar composition roof on the lean-to at the back of the warehouse over which thé burglar passed in making his entrance into the warehouse. There was left in the tar on the roof a heel print, of which photographs were taken and at the trial they were received in evidence. After entry was made into that particular warehouse, a safe of venerable vintage was broken. A series of three nuts were removed from the safe but these efforts were apparently in vain, for the operator was unable to open that particular safe.