People v. Molarius

KAUFMAN, P. J.

Defendant, Frank Martin Molarius, Jr., appeals from a judgment rendered on a jury verdict finding him guilty of burglary in the second degree (Pen. Code, § 459), and from the order denying his motion for a new trial. The contentions on appeal are that certain evidence used at the trial was obtained by an unlawful search and seizure, and that the identification evidence adduced at the trial does not sufficiently support the verdict.

We turn first to the appeal from the order denying the motion for a new trial. This appeal must be dismissed since it is an appeal from a nonappealable order under section 1237 of the Penal Code, as amended by Stats. 1961, chapter 850.

(People

v.

Simons,

208 Cal.App.2d 83 [25 Cal.Rptr. 57].)

The record reveals the following facts: On December 19, 1961, the general store in Bradley, California, was burglarized. On that date, about 2 a.m., Mrs. Aliene Harrington, who lived next door to the store, was awakened by loud popping noises. She got up, went to the window, looked into the alleyway between her home and the store, and saw a man walk down the alley between her home and the store. She remained at the window for a few moments and observed a second man, who was in the shadows at the rear of the store, enter the store with the first one. Mrs. Harrington immediately called Mrs. Sims, the wife of the owner of the store. Mrs. Harrington’s son, Samuel, overheard the call, got up and went to the window with his mother, and saw a man running towards the front of the building.

Mr. Sims immediately put on his clothes, got a shotgun and drove around the side of the store. After noticing that the

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sliding door had been opened and that a car was parked about 300 feet from the rear of the store, he went to get Mr. Hedges from the Shell station nearby. When they returned a little after 2 a.m., Hedges went to the front and Sims around to the back. Sims discovered that the padlock on the back gate and the cyclone fence had been broken and that the postmaster’s dogs in the backyard were eating large scrap bones, whereas they normally were fed only dog food mix. Pie then heard someone shout and saw two men run out of the back of the store and up the alley. He followed them down the alley and found a screwdriver. Mr. Sims then examined the ear and trailer parked at the rear of the store. A small dog was in the ear and some boxes and a pushcart in the trailer. Sims then entered the store from the front with Mr. Hedges. Sims saw a strange crowbar. Nothing was missing from the store.