People v. Higbee

TYLER, P. J.

Defendant was convicted of the crime of burglary in the second degree and sentenced to the state prison. He had previously been convicted under the same information of burglary in the first degree, but this judgment of conviction was reversed and a new trial ordered upon the ground that the evidence was insufficient to support the verdict of first degree burglary for the reason that there was none introduced at the trial tending to show that the.store entered was either an inhabited dwelling-house or

[457]

an inhabited building, or that defendant was armed with a deadly weapon, or that any person was assaulted during the commission of the burglary.

(People

v.

Higbee, 70

Cal. App. 788 [233 Pac. 79].) Several grounds are here urged

for a reversal of the present judgment, among which is a claim of the insufficiency of the evidence to warrant the conviction. There is evidence to show that one Forsythe, the prosecuting witness, owned a haberdasher’s store in the city of Burlingame, county of San Mateo. Forsythe had left his store on the evening of January 28, 1924, about 6:30 o’clock, and upon his arrival next morning he discovered that a rear door had been broken open and a lot of merchandise, including clothing, shirts, socks, and other articles had been taken therefrom. In the evening of January 28th defendant, ac.companied by others named Clinton, Dawson, Allen, and O’Connor, had driven to the city of Burlingame in an automobile. The machine was noticed by a police officer, parked in the vicinity of the store. It was occupied by two persons. Upon being interrogated concerning their business, the driver informed the officer his name was dintel and that he resided in San Jose. At this time Dawson approached the machine and was also interrogated. The officer was evidently satisfied with the statements made to him, for after noting the number of the machine and the address given, the parties were not detained. The next morning, upon discovering that a robbery had been committed, the chief of police of Burlingame checked up the statements of the occupants of the machine, but failed to locate the given residence. He then telephoned to the San Francisco police giving the number of the machine. It was located, and O’Connor and Clinton were taken into custody. They confessed to their participation in the crime and informed the police of their place of residence. The police repaired to the address given and there arrested defendant, and some of the stolen articles were found in his room. O’Connor testified at the trial and admitted that he had accompanied Dawson, Allen, and Clinton and defendant Higbee on- an automobile trip to Burlingame on the night of January 28, 1924, and had driven the machine to the vicinity where the crime was committed, at which time Dawson, Allen, and Higbee left the same and returned about an hour and a half afterward with a lot of suitcases which were taken back to San Francisco;