People v. Vest

WHITE, J.

In an information filed by the District Attorney of Los Angeles County, appellant, Paul J. Vest, was accused jointly with one Joe L. Parra of the crime of burglary. As to appellant, the information also charged two prior convictions. After entry of not guilty pleas by both defendants and the admission of the prior convictions by defendant Vest, the cause proceeded to trial before a jury, resulting in the conviction of each defendant of the crime of burglary of the second degree. Both defendants moved for a new trial and their motions were denied. Whereupon they were sentenced to state prison for the term prescribed by law. Prom the judgment of conviction and from the order denying his motion for a new trial, defendant Vest alone prosecutes this appeal.

Because the sufficiency of the evidence to support the judgment is challenged upon this appeal, it becomes necessary to summarize the evidence produced at the trial. The record reflects that one Henry Lum Park was the owner and operator of a business at 4403 South Main Street in the city of Los Angeles, wherein he handled groceries, meats and liquor. Appellant was the owner and operator of a gas station at 45th and Main Streets, a short distance from the aforesaid store.

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The store owner testified that he had known appellant for some two years, during which time he was a customer of appellant and the latter also purchased merchandise from Mr. Park. Mr. Park also testified that he was acquainted with the defendant Parra for some six months. On the evening of June 25, 1943, about 7:45 o’clock, Mr. Park saw appellant in his store and observed the defendant Parra on the outside in an alley at the rear of the store. On the occasion in question, Mr. Park was waiting upon a customer when appellant came in and said “Henry, give me a match.” The witness replied, “O.K. ” and gave him a match, which appellant accepted. Appellant then went outside and lit his cigarette. In a few seconds, appellant returned to the store and started toward the ice box at the rear thereof, when the store owner inquired of him “What do you want to do Paul?” to which appellant replied “Oh, you Chinaman with a Jap’s face.” Mr. Park testified that this was a facetious remark which appellant had addressed to him from time to time in a joking manner. Appellant then walked through a door into the rear room, and after entering the room shut the door. Two or three seconds after this had occurred, the store owner heard his alarm clock fall to the floor from a shelf where it had been placed. At this time, Mr. Park called out “Paul, what are you doing inside for ? I got everything outside here. I wait on you right here. ’ ’ The witness testified he received no reply from appellant. About that time, a Miss Ethel Moe, to whose testimony we shall later refer, came to the front door of the store and talked to the proprietor thereof. Following this conversation, the storekeeper went into the room where his liquor was stored and found there were four cases of whiskey missing. He described one of these cases as containing pint-size bottles of certain brands of whiskey packed in a carton which was labeled “Black Gold.” Upon discovering his loss, the store proprietor went immediately to the rear door, which he found wide open. At this time, it was daylight, but the witness testified that he saw no one in the alley back of the store. The store proprietor, however, testified that before appellant had gone into the rear room, he had bolted the aforesaid door from the inside.