People v. Beem

KAUFMAN, P. J.

Appellant, Doren Beem, and Ronald Mishler were charged jointly by indictment with burglary in violation of section 459 of the Penal Code. A jury found them both guilty of burglary in the second degree. On this appeal taken only by Beem from the judgment of conviction and the order denying his motion for a new trial, the sole contention is that the evidence does not sustain the judgment.

The record reveals the following facts: On July 5, 1959, Mr. Vuko, the copartner of the Golden Cask bar at 1725 Haight Street in San Francisco, arrived at his place of business about 11 p. m., and relieved the bartender. He served beer to Mishler

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and the appellant and then howled several games with them and some other customers. The appellant and Mishler bowled over 200 and signed a prize card. Mr. Vuko then returned to his duties behind the bar and noticed that Mishler and the appellant had been missing for about 20 minutes. Vuko was told by one of the other customers that they had gone to the men’s room. Vuko entered the men’s room and saw Mishler combing his hair at an angle to the mirror in such a way as to hide a part of the door to the lavatory, and with the water tap going full blast. The appellant was not in sight and Vuko did not see him again that evening. Vuko knew Mishler who had come to the bar at other times to cash checks. One of the doors of the lavatory was slightly ajar. Vuko asked Mishler if everything was all right, received an affirmative reply, and left after washing his hands.

He noticed that the padlock on the door which led from the men’s room to the storeroom was secured in its place. This storeroom door opened into the washroom “from your right,” and was always kept locked except when used by the janitor.

Vuko did not see Mishler or the appellant leave the bar. He looked over the premises and noted that the storeroom door in the men’s room was locked. He closed the bar and left about 2:30 a. m. to drive a friend home. When he returned about 3 ¡45 a. m. to finish cleaning up, he noticed that the two cash register drawers were open and that his hi-fidelity equipment was gone. He went into the men’s room and noticed that the door between the men’s room and the storeroom was completely open and had a number of “jimmy marks” on the storeroom side. On the men’s room side, the small bolt-type lock had been forced out, while the hasp type lock located at a height of 4-5 feet was still locked, although the screws which held this lock to the wall had been removed. The back door of the storeroom which led to the back yard was also open, but had not been forced. This door could only be opened from the inside. A lug wrench was found in the back yard. The police found a fingerprint on the storeroom side of the door which connects the storeroom and the men’s room. The fingerprint was subsequently identified as the appellant’s.