People v. Jones

NEEDHAM, .J.,

pro tem.

The defendant was charged with the crime of burglary and the jury found him guilty of burglary in the first degree. He appeals from the judgment and order denying his motion for a new trial. The salient facts in the ease are that on the night of October 27, 1925, a freight train of the Sacramento Northern Railroad Company was standing in the yard of that company at Marysville; the rear ear of the train was a caboose, within which the train crew kept certain personal effects in lockers. The train crew, consisting of two men, had locked the caboose and gone to the depot. Thereafter, one A. H. Hale, a railroad detective, arrested the defendant and marched him down the track toward the depot. The two members of the train crew testified that the defendant had in his possession when they met him in custody of Hale, the detective, certain personal property belonging to one or the other of them which they had left in the caboose, and that they thereafter went back to the caboose and found a looker broken.

The defendant urges several grounds for reversal, and we have carefully examined each of them; we do not think they merit detailed consideration other than the one ground, which we will consider, and which ground we feel will require a reversal of the case.

As stated, the defendant was convicted of burglary in the first degree. There was no testimony that the defendant was armed with a deadly weapon while in the commission of such burglary, or that in the commission of such burglary he assaulted any person. Neither can it, we think, be claimed that the caboose at the end of the train should be classified as an “inhabited dwelling-house or building,” as used in section 460 of the Penal Code. Section 460 of the Penal Code reads:

“T. Every burglary of an inhabited dwelling-house or building committed in the night-time, and every burglary, whether in the daytime or night-time, committed by a person armed with a deadly weapon, or who while in the commission of such burglary arms himself with a deadly weapon,

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or who while in the commission of such burglary assaults any person, is burglary of the first degree.

“2. All other kinds of burglary are of the second degree. ...” (Amendment approved 1923; Stats. 1923, p. 747.)