People v. Wagner

BRITTAIN, J.

The appellant was convicted on an information charging burglary by entering “the house, room, apartment, tenement, shop, warehouse, store and building” of Michael Logue, in San Francisco. The only question is regarding the sufficiency of the evidence to show burglarious intent.

Logue, the complaining witness, operated a saloon. Back of the saloon ran a passageway, on which opened the living apartments he occupied with his wife. From the passageway also opened a washroom, from which there was a door to an alleyway. Evidently there was another door leading either from the passageway or the washroom to an inclosed yard. Shortly before 10 o’clock on the night in question the appellant, a stranger, entered the saloon and was served with liquor. About 10 o’clock the saloon was closed by Logue. He went to his living apartments across the hall, and, after closing the door from the passageway to the living apartments, he retired with his wife. The door was fitted with a Vale spring lock, which, the evidence showed, automatically locked the door when it was tightly closed. Logue testified that he had slammed the door. Shortly before midnight Logue was awakened by his wife, who said something unusual was occurring in the corridor. He arose and on going to the door leading to the passageway found it open and saw the appellant standing there. He slammed the door and he testified the appellant then tried to shove the door in, and that the appellant made some exclamation, which Logue described as a “yell of disappointment.” Logue immediately went into another room, the back one of the living apartments, and saw the appellant trying to get over the fence from the yard. The appellant then ran out of the alleyway. Logue telephoned to the police station, and after a few minutes accompanied an officer to Daly City, where the appellant was arrested, after having been identified by Logue. At that

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time the appellant had whitewash on the upper portion of his clothing, which it was claimed was from the fence of the yard. The officer testified that when the appellant was arrested, in response to a statement of the officer that Logue claimed he had committed burglary at his residence, he said, “You have the right man—I am the man.”

On behalf of the appellant it is argued that under the presumption of innocence which attends the accused, and in view of the silence of the record as to the appellant leaving the saloon after he was served with drinks, the state failed to show a burglarious intent on the part of the appellant. It is argued that he may have gone into the corridor under the influence of liquor, and on coming to his senses after the saloon was closed, he was simply trying to find a way out of the corridor. The appellant relies on the rule announced in