People v. Cascino

KNIGHT, Acting P. J.

The appellants Cascino, Tartaro and Cirimele were found guilty by a jury of the crime of second degree 'burglary, and they have appealed from the judgment of conviction, urging as grounds for reversal insufficiency of evidence and error in the giving and the refusal to give certain instructions.

The place alleged to have been burglarized was a grocery store on the corner of Fillmore and Jackson Streets, San Francisco. Shortly after midnight, Officers McLaughlin and Schuler, while patroling their district in a radio-equipped police car, received instructions over the radio to proceed to said corner, and as they approached the grocery store they observed two men standing close to the side door thereof located on Jackson Street twenty-eight feet from the corner of Fillmore and set in from the property line about twelve inches. Officer McLaughlin alighted and as he neared the side entrance he saw a third man “coming out” of the doorway. The door had been broken in from the outside, evidently by someone forcing his weight against it, because the door casing had been torn away. The man seen coming out of the doorway proved to be Tartaro. He was a large man, about six feet tall and weighed some 240 pounds. McLaughlin asked him what he was doing there and he replied he had been urinating. Meanwhile, upon the approach of the police ear the other two men, who were subsequently identified as Cascino and Cirimele, started to walk away, but were halted by Officer Schuler. Upon being questioned Cascino gave the fictitious name Arieta, and both denied having any acquaintanceship whatever with Tartaro. When asked to explain their presence there they stated that Cascino lived in an apartment house across the street on the corner and they were just out for a walk, to smoke a cigarette. Being interrogated further they said they had been drinking and had just come from a dance-hall on Ellis and Fillmore Streets; that they started to walk to the apartment house, across the street, where Cascino lived, but upon reaching the corner Cirimele became sick and stopped to vomit. The three men were asked if they had an automobile and

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fhey stated they had not. All of the foregoing statements were shown to be false. Immediately after taking the men to the police station the officers returned to the scene of the burglary and found a small truck with the lights burning parked at the curb near the side entrance to the grocery store. It belonged to Cascino. And the falseness of the rest of the statements made by Cascino and Cirimele was established at the trial by the testimony of Tartaro, who was the sole witness for the defense, and whose testimony was at variance also with the story he told to the officers on the night of the burglary. He testified he had been friendly with Cascino for upwards of fifteen years and with Cirimele for more than five years; also that Cascino did not live in the vicinity of Fillmore and Jackson Streets at all, but in a distant part of the city, on Polk Street at Broadway. Continuing, he testified that earlier on the night of the alleged burglary he and Cirimele visited Cascino at his. home on Polk Street, where they drank some wine and after-wards all three drove to a dance-hall in Cascino’s truck, where they consumed more liquor; that shortly after midnight they left the dance-hall to go home in Cascino’s truck, but when they reached the corner of Fillmore and Jackson Streets Cirimele got sick; that Cascino stopped the truck and let Cirimele out; that he got out also, and Cascino drove on a little farther, parked the truck and got out too; that after Cirimele alighted he continued to throw up, some of the vomit getting on his, Tartaro’s, trousers; that just as they were about to return to the truck he, Tartaro, stepped in toward the side door of the grocery store to wipe off his pants and to urinate, and that as he was walking away from the doorway he was accosted by the police. The statements made-by Tartaro on the witness-stand and by his companions on the night of their arrest as to Cirimele’s intoxication and vomiting were shown to be false, however, by the testimony of the police officers. They stated that soon after they apprehended the men they smelled Cirimele’s breath and could detect no odor of liquor; and that while they found a few wine stains on Cirimele’s trousers, they saw no evidence of vomit on his clothing, on the clothing of the other men, at the scene of the crime, nor in the truck. The foregoing facts and circumstances are legally sufficient in our opinion to support the conclusion drawn by the jury