People v. Basuino

SPENCE, J.

The defendant was convicted of having committed first degree burglary and was sentenced to imprisonment in the state prison. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

On the night in question the drug-store of Robert Miller, doing business as Miller Pharmacy, on Market Street near Front Street in San Francisco, was entered and a bag of money and also other articles including a flashlight, a pair of gloves, a jimmy and a towel were stolen therefrom. These facts were brought to the attention of the police on the following morning. In the meantime the defendant Basuino and one Itala Fulliaresse, his co-defendant, had been arrested between 2 and 3 o’clock A. M. when seen about two and one-half blocks from the drug-store. At the time of their arrest all of the stolen property was in their possession and Fulliaresse was carrying a loaded revolver. The defendants attempted to explain their possession of the stolen property by stating that they had broken into an automobile on the Embarcadero and taken it. The officers immediately took the defendants to the Embarcadero, but the alleged automobile from which they said the property had been taken could not be located.

[160]

Appellant contends that the verdict is contrary to the law and the evidence. In this connection it is stated that “there is no evidence that the defendant Basuino entered the premises in question and that the only evidence against him is that he was found in company of the codefendant Fulliaresse who had the alleged stolen articles in his possession on the morning of the robbery”. While it is true that there is no direct evidence to show that appellant entered the premises, it is well settled that such direct evidence is not required. As was said in

People

v.

Flynn,

73 Cal. 511, at page 512 [15 Pac. 102, 103], “It was clearly proved that a burglary was committed at the time and place named in the information, and it was not necessary, in order to establish the defendant’s guilt, that any of the witnesses should have actually seen him break and enter the premises, or should have seen him in the vicinity of the premises about the time the burglary was committed. It rarely happens that an offense, like that here complained of, can be proved by witnesses who saw and recognized the defendant in the act, and resort must, therefore, ordinarily be had to circumstantial evidence.”