People v. Ruef

KERRIGAN, J.

The defendant was convicted of the crime of burglary in the second degree. From the judgment of conviction and from the order denying his motion for a new trial this appeal is prosecuted.

The evidence shows that the defendant with others on or about the twenty-ninth day of April, 1921, burglarized certain premises on First Avenue, in the city of San Francisco, taking therefrom a large quantity of wine and liquor. One witness testified that he saw three men in front of the premises from which said property was stolen early in the morning of the burglary. Entrance to the premises was effected through a large hole made by the use of a brace and bit and a saw. The property was carried away in an automobile. About the time of the burglary the defendant had rented a house on Rivoli Street, in said city, in which an insurance business purported to be conducted. Although the defendant negotiated the lease and paid the rent, the insurance business, if carried on at all, was not conducted in his name, but in that of E. G. Walter

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Co., as shown by a sign upon the front of the premises. Subsequent to

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the burglary a detective searched these premises and found thereon two hack-saws, a bolt-cutter, a brace, and three bits of uniform size, which bits fitted the holes made at the point where the entry of the burglarized premises was effected. The defendant admitted to three police officers that he participated in the burglary. He stated that he conveyed his confederates to the premises in an automobile; that according to prearrangement they were to effect an entrance into the basement of the premises, he in the meantime keeping the automobile in motion and occasionally passing the house; that upon an agreed signal he rejoined his confederates at the scene of their activity and loaded into the automobile the wine and liquor as it was delivered to him by them on the sidewalk.

The testimony introduced by the prosecution is uncontradicted, the defendant neither having offered himself as a witness nor called anyone in his behalf.

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It is first contended by the appellant that there was a fatal variance between the evidence and the indictment, and that it was, therefore, error on the part of the trial court to deny his motion that the jury be instructed to return a verdict of not guilty. This contention is based upon an evident inadvertence in the indictment, wherein the offense is denominated “robbery,” but this general designation is immediately followed by specific allegations showing* with sufficient clearness, that the offense charged was burglary. While the indictment was subject to demurrer upon the grounds of uncertainty and ambiguity, it does not follow that, having gone to trial upon it without objection, and been convicted of burglary, a defendant can upon appeal ignore the language thereof which specifically charged this offense, and affect to believe that he was on trial for robbery, and upon this foundation base a contention that the proof being of burglary there was a variance between it and the indictment.