People v. Franklin

MUSSELL, J.

Defendant was charged with the burglary of a dwelling in the city of San Diego, owned and occupied by Dr. and Mrs. C. W. Kennedy. A jury returned a verdict of guilty of burglary in the second degree and defendant, having admitted a previous conviction for burglary, also charged in the information, was committed to the state prison.

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

On August 27, 1950, defendant, who was admittedly without funds, called at the Kennedy home and asked for work. Mrs. Kennedy informed him, as he stood outside on the sidewalk in front of the house, that she did not have any work; that she was in a hurry and was going to church. She left the house immediately with her children. She returned in a few minutes and observed that the front door, which she had left closed, was partially open. She pushed the door open, entered, and upon reaching the top of the stairway leading down to the bedrooms of the house, which was built on a hillside, saw the defendant standing in the hallway separating the bedrooms. Mrs. Kennedy went outside and told her gardener about the man in the house. The gardener watched while she called the police. Defendant came around the retaining wall of the house and the gardener told him to stop. The defendant, however, started to run, pursued by the gardener who was shouting “Police, Police.” A city fire chief, who lived about three or four blocks away heard the shouts, joined the chase in his car, and within a short distance apprehended the defendant. The fire chief noticed that the defendant threw something into the shrubbery when he ran. A later search resulted in finding a small paper bag in the bushes, which bag contained some costume jewelry. When questioned by the police, defendant first denied having thrown anything in the bushes but later admitted that he had thrown the jewelry away and that he had stolen it from a drugstore that morning before going to the Kennedy home. He stated that he had never been in the Kennedy home and that he did not enter

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it that day. While there was evidence that the defendant worked for the Kennedys on two occasions, once to clean a car and again in 1949 to wash windows inside and outside of the house, no one gave him permission to enter it on August 27,1950.