People v. Hadden

WOOD, J.

Defendants Hadden and Herdegen were charged with the crime of burglary in two counts. Count I charged that they committed burglary on January 18, 1946, and Count II that they committed burglary on April 2, 1946. Both defendants waived trial by jury. At the trial Hadden pleaded guilty to Count I, and Count II was dismissed as to him in order that he might be called as a witness for the People. The trial proceeded as to Herdegen and, after the evidence on behalf of the People had been presented,

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the court dismissed Count I. After evidence was presented on behalf of Herdegen, the court adjudged that he was guilty as charged in Count II, and that the offense was burglary of the first degree. Herdegen appeals from that judgment and the order denying his motion for a new trial.

Appellant contends that the evidence is insufficient to support a conviction of burglary of the first degree.

Appellant and Hadden were arrested about- 3 a. m. on April 2, 1946, in an alley behind a music store which was on Melrose Avenue in Los Angeles. Before the arrest, while appellant was fleeing from the scene of the crime, he was shot by a police officer. At the time of the arrest Hadden was armed with a .32 automatic pistol which, according to testimony, he pointed at two of the arresting officers. Appellant’s automobile, which was in the alley, contained radios and other articles which had been removed from the music store, and at the time the policemen first drove into the alley appellant and Hadden were carrying a radio toward appellant’s automobile. Appellant testified that he had been drinking heavily for several hours prior to his arrest; that he vaguely remembered entering the alley but he did not remember entering the music store; that he did not remember being shot, and did not know he had been shot until he was in the hospital. Hadden testified that he was driving appellant’s automobile; that appellant had been drinking heavily and he took him for a ride to “straighten him out”; that he drove into the alley, and the back window to the music store was open; that he entered the store through the window; that he then opened the back door of the store from the inside and admitted appellant; that the two of them removed the articles from the store which were found in appellant’s automobile, and they also removed the radio, which they were carrying when the policemen arrived, from the store; that the burglary had not been planned; that while he was entering the store through the window, appellant handed him the pistol and he put it in his pocket; that he did not remember removing it from his pocket but he remembered having it in his hand before his arrest while he was running.