People v. Babcock

STONE, J.

Appellant was convicted of attempted burglary after trial by a jury. The conviction resulted from a sequence of events commencing about 3 a.m. February 4, 1963, near a drive-in located in the City of Modesto. A fence separated the drive-in from the home of Mr. Weldon, whose driveway ran between the fence and his house. An automobile entered the driveway about 3 a.m. and when Weldon turned on a light, the car backed out and parked across the street. A man walked from the ear toward the drive-in, so Weldon turned off his light and went outside. Upon hearing a tapping sound, he looked over the fence and saw a man prying on the drive-in door. Weldon then went to the other side of the lot, threw a pop bottle over the building to divert the man’s attention, and told Mrs. Weldon to call the owner of

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the drive-in, who lived nearby. The man walked across the street and disappeared. When the owner of the drive-in arrived he and Weldon went to the car, found it empty, and called the police. The pin hinges had been removed from the drive-in door and one lock had been broken.

An officer arrived, inspected the automobile and noticed that the hood was still warm. The car belonged to appellant Babcock, so the officer went to the home of his father, with whom Babcock lived. The father told the officer his son was not there. This was about 5 a.m.

About 8 a.m., appellant, together with defendant Van Clief and his wife, appeared at the city police office. Van Clief told a detective sergeant that appellant Babcock, Van Clief and his wife were in Babcock’s car the previous night, driving toward Modesto at approximately 11 p.m., when because of carburetor trouble the ear stopped running and the two men pushed it to the location where the police found it across from the drive-in. Van Clief told the officer that he, his wife, and appellant went to the Van Clief home for the rest of the night. The detective then talked to appellant, who corroborated Van Clief’s story. Nevertheless the detective put both appellant and Van Clief under arrest.

Later that day Van Clief told the officer that the truth was that he and his wife were at home asleep during the early morning hours when Babcock awakened him and said he had had ear trouble and needed a place to sleep. He said, also, that Babcock told him he “was in a little trouble” and needed to “establish an alibi” for the night. The officer advised appellant of the Van Clief admission, to which appellant replied that he was a federal parolee and did not blame Van Clief for trying to get out of this trouble. Later another police sergeant talked to appellant, who told him that Van Clief had not been with him the night of February 3, but that a Bay Smith had.