People v. Whittington

BRAY, P. J.

Defendant, convicted by a jury of burglary in the second degree, appeals from the judgment and the order denying his motion for new trial.

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[635]

Question Presented

Sufficiency of evidence of intent.

Evidence

On the evening of March 19, 1960, prior to worship services being held in the Germany Chapel, defendant was seen in the chapel playing an electric guitar which, along with an amplifier, belonged to the church pianist, Havon Butler, Jr. This instrument Butler played during services, leaving it in the chapel between services. After the services were concluded that evening, the church held another function in the dining room adjoining the chapel, access to which was through a door. The function was called a “lemon squeeze.” At this time defendant was again seen alone in the chapel playing the guitar. He came out of the chapel, entered the dining room and stood by the door for “a little while.” He then spoke to his mother about going home, went out to the street and waited in his car for his mother. The next morning the church pastor noticed that the guitar and amplifier were missing, and that the doors leading from the chapel to the street were open. The pastor’s brother had locked these doors after services on the previous evening while the lemon squeeze was still in progress. These doors can only be opened from the inside.

Sometime after noon that day defendant brought the guitar to the home of James Finley, asking him to “buy” or “pawn” it. Finley refused. Either the following day or the day after that defendant visited the pastor at the latter’s home and stated, “ ‘I’m sorry the guitar is missing, and I know where I can get one in the place of it.’ ” March 23 defendant sold the guitar and amplifier to a second hand store, signing a receipt for the money he received for it. He was paid by check, which he endorsed to an “Auto Mart” in payment of his indebtedness there.

Defendant told a detective in the Alameda County Sheriff’s Office that he had been asked by another person about a guitar, that he had informed that person that there was one at the church, that while he was in the dining room near the door “the other parties came in and took the instrument” and that the part he played in taking the instrument was “more or less as a lookout.” He stated to a police inspector “ ‘that after telling Frank Lane where and how to obtain the guitar, he, Whittington, entered the church for the purpose of being a lookout. ’ ”