People v. Carrigan

DRAPER, P. J.

A jury found each of two defendant brothers guilty of two counts of burglary. Each appeals from the ensuing judgment, and we appointed attorneys to represent them separately.

At about 4 a.m., the Villa Roma bar in San Jose was entered by forcing a fiberboard panel. Inside the establishment, two office doors had been pried open and marks of a screwdriver

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and pry bar were left thereon. One of the doors was so constructed that its opening triggered a burglar alarm. Nothing was taken from this bar. In the early hours of the same morning, the Hat’s Club, another San Jose bar, was forcibly entered. Some $150 in currency and rolled coins was taken. A jukebox and a cigarette machine were broken open, and $87 to $97 in coins removed. It was the custom of the management to keep the jukebox playing through slack hours. Half dollars and quarter dollars deposited in the coin slot for this purpose were marked with red nail polish, so that the company which owned the machine could return them to the bar owner when collections were made.

At about 1:30 a.m. the two defendants and a third man had been in the Villa Roma. The bartender recognized the defendants as men who had been in the bar on the night of a burglary two weeks earlier. At his suggestion, the owner followed defendants as they left, and noted that they entered a station wagon, one side of which was dented or “bashed” near the door. In the afternoon following the burglaries two men (identified at trial as defendants) entered a bar in Tulare County, and one of them (identified at trial as Herschel) exchanged marked quarters for a bill. The owner, aware of the practice of marking coins used in a record machine, took the number of their car, which was a station wagon dented on the side. She gave the number to police, who found that it was registered to defendant William. Defendants passed marked coins in other establishments in the same area on the day of the burglary and the next day. At 8:30 a.m., the second day following the burglary, a police officer went to William’s San Jose apartment. He had a search warrant but did not use it. He arrested William and searched the apartment and his station wagon, which was parked in the driveway of the apartment house. In plain view on the front seat of the car was a knife on the blade of which appeared a flake of red coloring material similar to that used on the marked coins. In a tool box which William identified as his own, and which he said he never loaned, were a screwdriver, a nail puller and a hammer, all of which were identified at trial as matching marks in the Villa Roma.