People v. Smith

BARNARD, P. J.

The defendants were charged with burglary in having entered a service station in Santa Ana with the intent to commit theft. They were represented by the public defender and all pleaded not guilty. A verdict of guilty as to each was returned by a jury and various sentences were imposed. The defendant Smith, who admitted a prior conviction, was sentenced to San Quentin and he alone has appealed from the judgment. No motion for a new trial was made.

The following facts appear from the evidence. On the afternoon of July 25, 1947, the four defendants left Los Angeles in an automobile to “take a ride.” On their way to Santa Ana they stopped at a station on Firestone Boulevard where they purchased gasoline and had the ear “serviced.” They then went on to Santa Ana, arriving at 3 p. m. at the service station here in question, which was operated by Mrs. Banfield and her son. They asked for some gas and some oil, and when the son started to put gas in the car Smith asked him if it was all right to go in and pay his mother. He replied “Yes” and Smith went to the other side of the ear from the station and talked to the folks in the car, and received money from some of them. Smith then went into the station and the son followed him telling his mother that they owed $3.38. The son got some oil and went out and began putting it in the car. As he did so, two of the defendants came and talked to him.

About this time, Smith handed Mrs. Banfield a five-dollar bill and 38 cents in pennies. She gave him back two $1.00 bills

[511]

whereupon he handed her one of these bills and asked for small change. He then walked to a position so that when she gave him the change she would have her back toward the door and the car. She gave him $1.00 in dimes and nickels, counting it into his hand. When she finished, he turned his hand and the money fell to the floor. Both of them stooped to pick up the money and as she was thus engaged Mrs. Banfield saw the defendant Robinson, who had entered the station, withdrawing her hand from the open till with money in it. One compartment of the till had contained a Pepsi-Cola receipt, a $20 bill and three $10 bills. Mrs. Banfield saw that this money was gone, and defendant Robinson ran over to a Pepsi-Cola box in the station. Mrs. Banfield then closed the door and accused the defendant Robinson of taking the money, which she denied. Defendant Robinson then took some $5.00 bills and a cigaret lighter from her pockets, and demanded that Mrs. Banfield search her. The other defendants entered the room and the men kept insisting that Mrs. Banfield take the defendant Robinson into the rest room and search her. Mrs. Banfield refused to do this. About this time Mrs. Ban-field observed that the defendant Huff was showing more interest in the Pepsi-Cola box than he was in the disturbance which was going on. As he was “just ready to put his hand on it” she rushed over and pushed him back, and then saw the missing money in the water in the box. She took out the water-soaked money, the $20 bill and the three tens being folded in the Pepsi-Cola receipt. The money was still water-soaked when she turned it over to the police a few minutes later. At this time defendants Belcher and Smith each offered her a dollar, begged her not to call the police, and said: “Let us pay you. Lets just forget it. ’ ’ Mrs. Banfield took down the license number of the car and phoned to the police. The defendants were picked up a few minutes later and while they admitted the general facts they denied having entered the premises for the purpose of theft, and defendant Robinson denied she had taken the money from the till. She said: