People v. Johnson

NOURSE, J.

Defendant was convicted of burglary in the first degree and appeals from the judgment. It is contended that the evidence is insufficient to support the verdict of burglary in the first degree under the provisions of section 1097 of the Penal Code that “when it appears that the defendant has committed a public offense, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degrees only.”

Mr. and Mrs. Clifton, the occupants of the residence in San Francisco from which the silverware, jewelry, and clothing were taken, were away from home from August 5, 1921, until after August 11th and the house was unoccupied. Before leaving they had carefully closed and locked the doors and windows. On the morning of August 11th a neighbor discovered that the kitchen door in the rear of the house was open. An examination disclosed that entrance had been gained by chopping a panel out of the kitchen door and removing a bolt which fastened the

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door on the inside, and that silverware, jewelry, and clothing of the approximate value of two thousand five hundred dollars had been taken from the house. Shortly after 12 o’clock noon of the same day defendant was arrested by police officers who saw him come out of a certain San Francisco hotel in which he was registered. His room was searched and in a closet thereof were found eight suitcases containing the articles in question. There appears to be no question raised on appeal as to the sufficiency of the evidence to show that defendant committed the burglary. Therefore, a particular recital of the evidence on this phase of the case is unnecessary.

Regarding the time when the crime was committed, the evidence shows that appellant rented the room in which the stolen articles were located about noon on August 9th, and that at the time he had with him two or three suitcases or grips. At about half-past 3 in the afternoon of that day he was seen by one of the witnesses standing on the corner of Broderick and Green Streets looking toward Union Street, the Clifton residence being on Broderick between Green and Union Streets. One Mrs. Ernst testified that she lived on Union Street right below Broderick; that her house stood on the key lot and her yard and the Clifton’s yard met in the rear; that on the night of August 10th she was sleeping in a room in the back part of her house on the second floor with the windows wide open; that she was awakened from a sound sleep by a noise as if someone was pounding—that it sounded like a rock pounding, as if someone was grinding something and pounding; that she thought it was in her place; that she listened and then pulled the window up and down and the noise stopped; that she went back to bed and almost immediately she again heard the noise; that she got up again and opened the window screen and looked around, and just then she heard a door and somebody said “sh!”; that it was a very dark night and she did not see anyone; that she then went to bed and thought no more about the occurrence until the next day. As heretofore stated, the evidence shows that the kitchen door was found open the following morning and that a panel had been chopped therefrom in order to reach within and withdraw a bolt which had been placed on the inside of the door. The burglary was committed some time