People v. Primo

NOURSE, P. J.

Defendants Primo and Gordon were tried before a jury on charges of burglary. Primo was also charged with a prior felony conviction. They were convicted of

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burglary in the second degree, and Primo of the prior felony conviction. Probation was denied.

At the request of appellants, counsel was appointed by the court to handle their appeals from the judgments. The sole issue raised is the insufficiency of the evidence to sustain the verdict, more specifically that the evidence was insufficient to identify the appellants as the perpetrators of the burglary.

The burglary took place about 3 a. m. on September 25, 1952, in the city of Oakland. Officer Crawford walking his beat heard a tapping noise coming from the vicinity of the Lucky Market. Looking over the wire mesh gate in front of the market he saw the heads of two men behind the counters located near the front of the store. There was a 200-watt light burning over each counter and a light burning in the rear of the store. Officer Crawford testified that he put the barrel of his gun through the wire mesh and ordered the men to stand up and put up their hands. One raised up to look (identified as Primo) at which time Crawford obtained a good look at his face and features and the jacket he was wearing. As the man dropped back, Crawford fired; the men ran to the rear of the store, giving Crawford an opportunity to observe their general appearance and manner of dress. Officer Crawford then ran to the police call box located nearby, put in a request for assistance and returned to the market, which consumed about three minutes in all. He stood by a shed in the alley watching the premises until other policemen arrived, six or eight in number. While waiting, Officer Crawford observed two shadows east from the roof which disappeared just before the policemen arrived. One of the police officers caught Primo going over a 6-foot fence, which is behind the store, and others located Gordon hiding on the roof of an adjacent building, crouched against the wall. Crawford identified Primo as the man he had seen in the market and noted that both were wearing leather jackets with fur collars similar to those which he had observed on the men in the market. An examination of the roof of the market disclosed one of the hatches had been ripped loose. Through this hatch access could be obtained through the attic to the storeroom adjacent to the portion of the store where Officer Crawford first saw the two men. He testified the open hatch was the only place where the burglars could have entered or left the market. When Officer Crawford inspected the interior of the market he found moneybags