People v. Walker

PULLEN, P. J.

Defendant was charged and convicted of burglary, and has appealed from the judgment of conviction.

[19]

Prom the record it appears that defendant and his companions entered the premises of the complaining witness and took therefrom two slot machines.

Two questions are presented upon this appeal. The first point urged is that when the defendant entered the premises he had no knowledge of the slot machines, and therefore entered without any felonious intent, and secondly, that slot machines, being illegal and contraband, may not be the subject of burglary.

As to the first point, the question of intent was determined adversely to the defendant, and being a question of fact is not subject to review by this court.

As to the second point—that slot machines are not subject to burglary—appellant concedes that in

People

v.

Spencer,

54 Cal. App. 54 [201 Pac. 130], wherein it was held that a person who entered a building with the intent to take liquor containing more than one-half of one per cent by volume of alcohol, and illegally manufactured for beverage purposes during the prohibition era was not guilty of burglary, had been overruled by

People

v.

Odenwald,

104 Cal. App. 203 [285 Pac. 406, 286 Pac. 161]. However, he claims that the more recent case of

People

v.

Rosen,

11 Cal. (2d) 147 [78 Pac. (2d) 727, 116 A. L. R. 991], has by implication at least, overruled the Odenwald case,

supra,

and has readopted the rule announced in the Spencer case.