People v. Graziano

BARTLETT, J. pro tem.

By the information in this case, appellant and James Graziano and Frank A. Serio were jointly accused of committing the crime of burglary, a felony in that they, on the 22d day of December, 1946, wilfully entered the store and room of Ben Millman and Eugene Malone in San Pedro with the intent to commit a theft. The defendants J ames Graziano and Frank A. Serio pleaded guilty to the crime of burglary in the second degree. At the time of the trial the appellant waived trial by jury and the case was submitted to the court upon the transcript of the testimony given at the preliminary hearing of the case. After the

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reading of this transcript the People rested and then Maesten testified in his own behalf. The court found the appellant guilty of burglary of the second degree.

Resolving the facts most favorably to the decision of the court, the record discloses the following: the witness Millman stated that he operated a market at 398 West Sixth in San Pedro; that he had a partner named Malone and that they operated the store on the date claimed in the information; that they closed business at 6 o’clock in the evening and that he had authorized no person to enter the store after closing hours on December 21. He stated that he was not acquainted with and had never seen the appellant Maesten; that he discovered after December 22, the store had been entered through a broken skylight over the men’s lavatory. The witness Malone stated that he was a partner and would testify in the same manner as Millman had.

The witness Rockmaker testified that he was the lessee of the vegetable department at this address; that on the 21st of December he closed the premises before he left at about 6:30 p. m.; that he was the last one to leave the store and that he had authorized no one to enter the premises.

Michael Bartolotta testified that he was a bartender and was acquainted with the defendant. That about 10:30 or 11 p. m. Graziano and appellant entered his bar and had a few drinks. Maesten asked to borrow his car and the witness lent him the ear and gave him the keys. He did not get the car back until four days later at the police department. He stated that appellant told him they had a couple of girls and they wanted to borrow his car for a little while.

The next witness was T. B. King, who testified that he was a police officer of the city of Los Angeles and that at about five minutes after 2 a. m. on December 22, he had a conversation with appellant whom he found standing at the northwest corner of Sixth and Mesa Streets which is on the other side of the street from the store in question. He asked appellant what he was doing there and appellant told him that he had a boat there and that he was waiting for two friends to come down and that they were going to work over the motor on the boat. At that time the appellant showed him six cards, one of which was a temporary pass of the Consolidated Steel Corporation issued to Captain L. C. Hirsch and representing Coastal Nomad. All of the other cards were made out to Hirsch with the exception of one made out to