People v. Ferns

[286]

THE COURT.

The defendant was convicted of the crime of burglary in the first degree, and this appeal is from the judgment and from an order denying the defendant’s motion for a new trial.

The facts of the case pertinent to the decision of the points made in support of the appeal are substantially as follows: On the second day of February, 1914, the defendant occupied room 12 of a lodging-house in Oakland kept by one Charles Fong. In the room were a number of articles, including a suit ease, a small camera case, an overcoat, a pair of shoes, a steamboat ticket, and some milk bottle tickets. The defendant left the place at about 9 o’clock the next morning. At about 12 o’clock he reappeared, and asked Charles Fong if he might occupy the same room that night. Fong replied that he would be using the room in the evening until 12 o’clock, and that probably for this reason the defendant would not want it. To this the latter made no reply, and the two separated. Later the defendant went to the wife of Fong, and told her that her husband had rented the room to him; whereupon Mrs. Fong delivered to him the key of the room. The next morning the defendant was seen leaving this room, and going in the direction of the street carrying a dress-suit case, and about 8 o’clock in the evening the articles enumerated above were missing. When arrested milk bottle tickets were found in the possession of the defendant, which he claimed belonged to him.

It is urged on behalf of the appellant that a breaking is an essential element of burglary; that the evidence shows that the entry was lawful, and hence that there could be no breaking. But the defendant resorted to a subterfuge to get possession of the room; he was seen leaving the place under suspicious circumstances, and when arrested he had in his possession certain personal property belonging to the prosecuting witness and taken from the room occupied by the defendant. The jury was justified in inferring from this evidence that the defendant entered the room with the intention of committing larceny; consequently, as to this element of the crime of burglary called in question by the appellant, the proof was sufficient. No matter what may be said of the character of his entry, as to whether or not it was lawful, if he entered the room for the purpose and with the intent to commit the crime of grand or pettit larceny, a perfect case