People v. Eastman

STURTEVANT, J.

The appeal is from an order of the Superior Court of the City and County of San Francisco, denying the appellant’s motion for an order vacating, annulling and setting aside the judgment of conviction and sentence.

By a complaint filed in the Municipal Court in San Francisco during October, 1942, the appellant was charged with burglary. The premises alleged to have been burglarized con

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sisted of the buildings of the Northwest Engineering Company, 255 Tenth Street, San Francisco. Gilbert Mallory was jointly charged.

At a preliminary examination held in said municipal court, Mallory was held to answer for burglary and an information was filed against him. Mallory was tried in the superior court for burglary and the jury disagreed. Mallory thereupon pleaded guilty to the crime of attempt to commit burglary of the second degree and was given a short county jail term.

The testimony given at the preliminary examination is contained in the reporter’s transcript.

At said preliminary examination the appellant Eastman pleaded guilty to the charge of burglary and the magistrate then certified said case to the superior court for sentence. On November 5, 1942, the superior court sentenced him to state prison and fixed the degree as second degree burglary.

On June 2, 1944, appellant Eastman, through his counsel, moved the superior court that it vacate and set aside the judgment of conviction on the ground that no burglary was in fact committed by anyone or at all, including, of course, the appellant.

The notice of said motion to vacate judgment is contained in the clerk’s transcript.

Included in the reporter’s transcript on appeal are (1) the proceedings had on the hearing of the said motion to vacate judgment; (2) the said testimony adduced at said preliminary examination; and (3) the testimony of the prosecution witnesses at the trial of the codefendant Mallory held in the superior court.

The appellant quotes from the testimony contained in the record facts showing that Mallory acted as a lookout and stationed himself at the corner of Folsom and Dore- Streets, and that the appellant crawled under a wire gate into the yard occupied by Northwest Engineering Company at 255 Tenth Street. It does not show affirmatively that he entered any building in said lot. However, it does show affirmatively that he crawled up on the roof of the building of Northwest Engineering Company with the intention of entering said building through the skylight and with the intention of robbing the cash drawer after entrance made. He was apprehended and arrested before entrance and while in one of the gullies of said roof. The appellant then contends that such facts show no burglary was committed by anyone; that the appellant pleaded guilty to a crime that was never committed;