People v. Cartier

SHINN, P. J.

In a court trial, Thomas George Cartier was convicted of second degree burglary and was sentenced to nine months in the county jail. He appeals from the judgment and from the denial of his motion for new trial.

Upon application of appellant for appointment of counsel

[615]

the matter was referred to the Committee on Criminal Appeals of the Los Angeles Bar Association with a request for a report which would direct our attention to any matter disclosed by the record which would indicate that the applicant might be entitled to some relief. Upon receipt of a report from a member of the committee that no meritorious ground of appeal had been found, and in accordance with our settled practice, we examined the record in order to ascertain whether appointment of counsel would serve any useful purpose. Having determined that the appeal appeared to be without merit we denied the application for appointment of counsel and notified appellant of our order, substantially extending his time to file a brief. No brief having been filed, we have reexamined the record and are disposing of the appeal by written opinion.

The evidence consisted of that received at the preliminary hearing and additional evidence introduced at the trial. On the morning of June 19, 1958, an employe of Durland’s Fireside Café in Los Angeles discovered that the premises had been broken into and the office ransacked; a floor safe containing about $1,100 in cash and checks had been cracked and damaged and money sacks were lying on the floor. It was established that the safe had been opened by punching out the dial. Cartier was identified by Durland’s bartender as having been drinking at the bar in the company of another man from midnight to 2 a. m. on June 19th.

Four Los Angeles police officers assigned to the Hollywood Detective Bureau went to the apartment occupied by appellant and his wife on Los Feliz Boulevard shortly after midnight on July 3d. The officers had neither a search warrant nor a warrant for Cartier’s arrest. They entered the apartment using a passkey supplied by the apartment house manager, identified themselves as police officers and placed the Cartiers under arrest for burglary. The officers made a search of the premises and discovered a suitcase and an overnight bag in a closet in the kitchen. Inside the bags they found two punches, a dial puller, a flashlight, a pair of cotton gloves, pry bars, hammers and other tools. Officer Gabard, a qualified police chemist, testified that he made a microscopic comparison of marks found on the punches and on the lid belonging to the damaged safe in Durland’s office. He stated his opinion that the marks on the lid were made by one of the punches found in Cartier’s apartment. The punches, the safe lid and several photographs showing the marks on the punches and on the lid were received in evidence. The punch, which is before us