People v. Townsend

FOURT, J.

This is an appeal from a judgment of conviction of burglary.

In an information filed in Los Angeles on November 22, 1967, William Robert Clark and Curlee Townsend were jointly charged with burglarizing a Safeway Store on October 31, 1967. Each of the defendants in a jury trial was found to be guilty of burglary in the second degree. Townsend, the

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appellant herein, was sentenced to the state prison and a timely notice of appeal was filed by him.

A résumé of some of the facts is as follows: Frederick Mersch, an assistant manager of a Safeway Store in Pacoima, closed the place of business at about 11 p.m. on October 30, 1967. No one was given permission to enter and remove any item from the store until the same was to be readied for business the day following. Kenneth Porter, the store manager, received a telephone call about midnight of October 30th with reference to the store and he went to the establishment where he was met by the police. The north door of the store had been broken and the glass was shattered. Porter entered the store and observed that the top of the cigarette rack was empty and a portion of the meat counter also was empty. He saw meat and cigarettes belonging to the store in two shopping carts outside the store.

At about 12:45 a.m. Officers Dorion and Kennedy received a call because of a silent burglar alarm installed at the Safeway Store. The officers went to the store and stopped the police car about 10 yards from the corner of the building. Officer Dorion saw defendant Clark running from the building toward and past the police car, with cigarette cartons in his arms. Dorion ordered Clark to stop. Clark continued running and Dorion pursued him and caught him in a yard a short distance away. Dorion later recovered the cartons of cigarettes which Clark had dropped during the attempted runaway. The officers wheeled shopping carts containing meat and cigarettes back into the building. At about this time they noted that a door had been broken; Dorion entered the market and during a search thereof noted Townsend, the appellant therein, lying on the floor in the approximate center of the market. Townsend was arrested.

In the officer’s testimony with reference to Townsend he stated that Townsend “was just laying there. He wasn’t doing anything.” Further, that as the officer recalled it Townsend “was on his stomach.” that he at first “appeared to be” prone as though he were sleeping; the officer then saw Townsend move and although he did not “know if he [Townsend] was sleeping or not” he then searched Townsend and found no products of the store in his possession. The officer further stated that it appeared that Townsend “had been drinking.” That it appeared that he (Townsend) was under the influence of alcohol at that time, that Townsend’s speech was slurred and he (the officer) thought that Townsend’s