People v. Tims

WAGLER, J. pro tem.

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Defendant was convicted by a jury of a violation of Penal Code, section 464—burglary with explosives. This section so far as pertinent provides that “Any person who, with intent to commit crime, enters . . . any building . . . and opens or attempts to open any . . . safe ... by use of acetylene torch ... is guilty of burglary with explosives.”

Defendant contends: (1) that the trial court erred in the admission in evidence of certain extrajudicial statements made by him at the time of and subsequent to his arrest; (2)

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that the evidence was insufficient to sustain his conviction; and (3) that the trial court committed reversible error in instructing the jury.

The first witness for the People was one Harold R. Jarvis, president of Transportation Guarantee Company, which operates a truck repair business at 1835 Folsom Street, San Francisco. He testified that on Saturday, March 29, 1958, he left his place of business about 2 p.m.; that at that time the offices which were on the mezzanine floor were in proper order; that when he returned the following Monday morning the bookkeeper's office was “turned around, desks were moved, and the safe was missing.” Also missing was a “Kodaseope 1620” motion picture projector and numerous other items of personal property.

The safe which weighed between four and six hundred pounds was later found on the ground floor, inside a newly painted furniture trailer. Near the safe were two complete acetylene torch units. Mr. Jarvis described the condition of the safe as follows: 11 The hinges and the door were burned off, and all the records inside were partially burned and charred. The cash drawer [containing about $230] had disappeared altogether.” Photographs of the safe were introduced in evidence and certain discolored areas shown were described by the witness as acetylene burns.

The foregoing is all of the evidence offered to establish the corpus delicti and defendant contends that on this state of the record it was error to receive evidence of his later possession of a portion of the missing property and of his conflicting statements made in relation thereto.

Proof of the corpus delicti was of course prerequisite to the admission of the evidence in question. Defendant concedes that all of the elements of the offense charged were adequately established except the element of entry. His argument on this point, however, appears to be based entirely upon the erroneous assumption that to establish an entry one must also prove a “breaking.” Defendant cites many cases which factually describe an actual breaking. In each case, however, the “breaking” was only incidental to the entry.