People v. Stewart

GRIFFIN, J.

Defendant was convicted by a jury of first degree burglary on December 24, 1951. The action was consolidated for trial with another action in which defendant was accused and found guilty of violating section 4532 of the Penal Code in escaping from a road camp. No appeal is being prosecuted from the judgment in the latter case.

[689]

It is claimed that the evidence is insufficient (1) as to the establishment of defendant’s intent to commit theft at the time of entry into the building; (2) to show that the burglary was committed in the nighttime; and (3) to show burglary of the first degree. He cites such cases as

People

v.

Golembiewski,

25 Cal.App.2d 115 [76 P.2d 717];

People

v.

Gibson,

107 Cal.App. 76 [289 P. 937]; and section 1097, Penal Code.

On the night of December 23, about 10 :30, defendant, an escapee from the road camp, met a soldier at a bar in Lamont. Defendant was driving a blue Kaiser car but had no money. They discussed the possibility of picking up some girls. After visiting several of the bars, they proceeded to Maricopa Farms, because defendant said he knew a girl, Myrtle Dawn, who lived there. They first visited with some neighbors of the Dawns. Defendent told the soldier he was going down to his “buddy’s” or “brother’s” house, i.e., the “Gates” cabin, to get some clothes, etc. They arrived there about one a. m. and found the front door padlocked and the house was in complete darkness. Defendant tore off the padlock and entered. He immediately went to the gas range and fried some potatoes and other food, ate, and went to bed. The next morning they went to a neighboring home. Defendant drove away in his car and disappeared for a while. He reappeared in the afternoon and later disappeared sometime between 5 and 7 p. m. During the interval the soldier had been warned to be careful and not to associate with defendant. The soldier did not see the defendant again until about 9:30 p. m., at which time he drove up in his car and had three or four pints of gin and some money on his person. Defendant tried to persuade the soldier to go along with him but the soldier refused. Defendant departed alone about 11 p. m.