People v. De Soto

PULLEN, P. J.

Defendant was convicted by a jury of the crimes of burglary in the first degree, and attempted rape. He appeals from the judgment of conviction and from the order defying a new trial.

Briefly the facts as gathered from the transcript show that about 3 o’clock on a Sunday morning in December of last year, the defendant entered a two-story dwelling house located at 524 East Miner Avenue in the city of Stockton, where the complaining witness was asleep. She was awakened by the entry of defendant in her room, and at first thought it was a roomer who occupied an adjoining room in the house. Defendant, then threatening to do bodily harm to the complaining witness, attempted to rape her, but was driven away and left the house, taking with him certain personal property belonging to the inmates of the home, consisting of a small amount of money, a bath robe, glasses, a zipper jacket and other small articles. In the meantime the police had been notified of the presence of the defendant in the house, and about a block from the scene of the crime he was arrested, and in his possession was found the stolen property.

The first point urged by appellant is that there was no evidence in the record showing that he did not have per

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mission to enter the premises. He did not live at the address, and there is ample evidence that he had not been invited to enter the premises. The intent with which an act was done may be gathered from all the circumstances shown in evidence. The entire question being one of fact for the jury, we need not here do more than state that a reading of the record shows there was ample support for their finding of a felonious entry.

The point relied upon by appellant, apparently with the most confidence, is that the prosecution failed to establish the venue, claiming that the testimony established only that the offense charged took place in the apartment house of Angie Newell, without any showing of the county in which the apartment house was located. Mrs. Newell however, testified that her apartment was located at 524 East Miner Avenue. One of the witnesses, who also lived in the apartment, testified that he resided at 524 East Miner Avenue. A further identification of the premises is established by certain police officers, who testified that they were members of the police force of the city of Stockton, San Joaquin County, and that they were performing their official duties as police officers of said city when they arrested the defendant about a block from the apartment of the complaining witness, 524 East Miner Avenue, and that they took him first to the apartment and then to the jail.