People v. Garrett

[325]

WARNS, J. pro tem.

*

Appellant was convicted of burglary in the second degree and sentenced to state prison. The trial judge was the trier of fact, a trial by jury having been waived by appellant. He has appealed from the judgment and the sentence.

On the evening of Sunday, January 17, 1965, William Jones, an employee of the Chukker Restaurant located at 1124 J Street, in Sacramento, noticed in passing the closed restaurant that the door of the cigarette machine was open. He unlocked the front door and started to enter but decided not to do so when he heard someone moving around inside. Jones immediately locked the door and went to call the police. After making the phone call he returned and waited for their arrival in an alcove of the building next door to the restaurant. While standing there he was approached by the appellant and engaged in a short conversation about the fact that the restaurant was closed on Sunday. The police not having arrived, Jones then walked to the Mark Twain bar, a distance of about a block and a half from the Chukker Restaurant and again called the police. Jones testified that about half an hour elapsed from the time of his first call until the arrival of the police.

In response to the call that a burglary was in progress at the Chukker Restaurant, Officer Oliver upon arrival immediately proceeded to the alley behind the restaurant and observed appellant coming out of the alley. At that time and place appellant was asked by Officer Oliver, “where he was coming from, and where he was going. ’ ’ His answer was that he had a few drinks and had gone into the alley to urinate. Officer Oliver thereupon took appellant back into the alley to investigate his statement and observed a wet spot consistent with appellant’s explanation of his presence there. Officer Oliver then asked appellant if he had a weapon and he said that he had. A routine weapons search or “patting down” was then made of appellant’s person which disclosed a pocket knife and what felt like and turned out to be a large amount of coins in the left front pocket of appellant’s trousers which Officer Oliver at that time estimated to be from $20 to $30. Officer Oliver removed some of the coins from appellant’s pocket to see what they were. Thereupon appellant was taken into custody and walked around to the front of the

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