People v. Dukes

BARNARD, P. J.

The defendant was charged, in separate counts, with the crimes of burglary and petit theft, the latter including a prior conviction of the same offense. It was alleged, respectively, that he entered a house occupied by one G. H. Kemp with intent to commit theft, and that he took therefrom a portable typewriter. He admitted the prior conviction and a jury found him guilty of burglary in the second degree and of petit theft. He was sentenced on both counts, the sentences to run concurrently, and has appealed from the judgment and from an order denying his motion for a new trial.

The following facts appear from the evidence introduced by the prosecution: Kemp operated a service station in Orange County a few miles from the main highway between Los Angeles and San Diego. He lived in a house some 75

[107]

or 80 feet from this station, with his wife, his daughter and his son-in-law. Near the front door of the house was an illuminated sign which read “Night service 50c extra.” About 5:30 A. M. on April 20, 1936, Kemp was awakened by a sound in the living room of his home. He arose and opened the bedroom door and saw the appellant standing in the living room. When asked what he wanted the appellant replied by asking the way to San Diego, and Kemp told him. As to what next happened Kemp testified: “I closed the door then and started putting on my clothes, and then I heard a noise and I opened the door and he had got the typewriter and the lid on the case had come open and he had went out the door with it and it had fell out and lit on the cement walk. ’ ’ When Kemp came out the second time the outside door to the living room was open, the screen door was closed, the typewriter case lay on the porch floor and the typewriter lay on a cement step just off the porch. This typewriter, which belonged to Kemp’s daughter, had been left the night before standing on the floor of the living room on the side farthest from the front door. Kemp asked the appellant what he was doing with the typewriter and received no reply. Kemp’s son-in-law then appeared and told the appellant, who had reentered the room, to sit down until the sheriff came. Someone phoned for the sheriff and Kemp got a shotgun and told the appellant he would have to stay there until the officers came. However, the appellant went out to his automobile, which was standing near the service station, and talked to his wife and a man named Kostrubanick, who were in the car. This other man gave Kemp a card which he said contained his address. Shortly thereafter the appellant drove away although Kemp told him to stay as the sheriff would soon he there. The appellant was arrested about 6:45 the same morning on the coast highway near Laguna Beach. When arrested he told the officer that he had not taken the typewriter hut that it had fallen out on the porch. He also told the officer that when he took the typewriter he was mistaken and “thought it was his wife’s overnight case”. The deputy sheriff testified that on the way to the jail he heard the appellant tell his wife “that she didn’t have to worry that all she would have to do was to swear that he had knocked at the door and had been told to come in and he had picked up the case by mistake”.