People v. Martone

MOORE, P. J.

Defendant was accused by information of the crime of attempted burglary together with a prior conviction for violation of section 107 of the Penal Code, which makes it a felony to attempt to escape a prison, and a prior conviction of the crime of burglary. He admitted his prior convictions but denied that he was attempting to commit a burglary at the time of the apprehension in the instant case, and having been convicted of attempted burglary of the second degree, he appeals from the judgment after conviction

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by the court. The only ground for his appeal is the insufficiency of the evidence to sustain the judgment.

On the morning of July 15, 1939, at 2:16 o’clock A. M., a police officer of the city of Los Angeles saw defendant leaning against the glass door with his right arm through the glass which had been broken. The pane appeared to be about two feet square. The building to which said door constituted the entrance, stood at the corner of North Broadway and Workman Streets, in the city of Los Angeles. The door opened on Workman Street. Upon the approach of the officer, defendant stepped away from the door and inserted his right hand into his pocket. On the withdrawal of his hand from his pocket, it was found to hold a crescent wrench. An examination of the locks on the door disclosed that a lock on the inside had been scratched by some hard substance and that the clasp against the wall had scratches on it. Moreover, a further examination of the premises, after darkness had passed, indicated that the hook which held the lock on the back door of the store on Workman Street was bent and the window was smashed. His identity as the intruder, the fact that he had his arm through the broken glass of the door; that he held in his hand an instrument capable of breaking locks and of opening doors, leaves little to be said on behalf of the innocence of defendant. The trial judge sitting as a jury was warranted in finding that he had attempted a burglary.

Where a person climbed over a second-story balcony and approached the door leading therefrom into a bedroom and fled upon arousing the occupants, he was guilty of attempting to commit a burglary, although he never touched the door. The evidence indicated an overt act, and from the attendant circumstances, the intention to commit the crime of burglary was reasonably inferred without the aid of any extrajudicial admissions.