People v. Heim

PEEK, J.

Defendant Walter Heim appeals from a judgment of conviction finding him guilty of burglary in the second degree on the grounds (1) that the uncertainty as to the violation charged in the information resulted in a denial of due process of law; (2) that certain evidence was obtained in violation of his constitutional guarantee against unreasonable search and seizure, and hence was inadmissible; and (3) that the evidence was insufficient to support the judgment.

At approximately 11:35 p.m. on the evening of the alleged crime a merchant patrolman, one Hugh Clifton, while on patrol, heard the sound of glass breaking in the vicinity of the Vecino pharmacy in the city of Chico. Returning to the

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area, Clifton observed two persons, both of whom were rapidly walking away from the pharmacy. He immediately reported to the sheriff’s office, describing one person as being tall, slight, dark haired, and wearing a grey suit; the other as being shorter, huskier, grey haired, and wearing a grey jacket. He reported that the taller of the two men entered the driver’s side of a grey Buick sedan, which he believed to be a 1952 model; that the shorter of the two walked around the back of the car, and as he did so, bent the license plate before getting into the passenger side. Clifton continued his investigation and found the door of the pharmacy ajar, the window broken, and evidence that the door had been pried open. The sheriff’s office in turn broadcast the information reported by Clifton, giving a description of the car and the bent license plate, but failed to give the license number or a description of the suspects. Officer Porter of the Chico Police Department, after receiving this report, stopped defendant and his codefendant, Thomas, but after a short interrogation released them, believing that he was looking for younger men. In response to Porter’s questions they stated they were merely passing through Chico on their way from Redding to San Francisco. Porter then communicated with the sheriff’s office, giving additional information, including the license number of the car he had stopped. This additional i nformation was broadcast and shortly thereafter, the suspects were again apprehended.

When questioned the second time, defendants stated they left Sacramento that day and had gone to Red Bluff where Heim had inquired about work as a cobbler. They further stated they had arrived in Red Bluff at approximately 6 :30 p.m. and left between 9 :30 and 10. They were unable to give the name of the store where appellant had asked for employment, and when reminded that the stores would have been closed in the evening, they replied they were confused as to the exact time. When asked why they had not taken the main highway to Chico rather than a secondary road, their reply was that they were confused and had lost their way. They also stated that the only time they stopped in Chico was when they were questioned by the police. During their interrogation, the merchant patrolman arrived, identified the car, and although not positive about the identification of the defendants, stated they were dressed the same as the two men he had seen leaving the vicinity of the pharmacy. The