People v. Winters

Fitzgerald, C. The defendant was accused, by information, of the crime of burglary, charged to have been committed by the entry of the defendant into the house of one John Gunn, with intent to commit larceny. He was convicted of burglary in the first degree,, and sentenced to imprisonment in the state prison for the term of six years. From the judgment of conviction, and the order denying the defendant’s motion for a new trial, this appeal is taken.

The evidence upon which the verdict was founded is, substantially, as follows: —

Vincent Brewer, a witness for the prosecution, testified that on the fourth day of July, 1890, he was in the employ of John Gunn, the owner and occupant of the house in question, as driver of a dairy wagon; that he had been in town that day, and returned to Gunn’s house, where he lived, shortly before twelve o’clock that night; that he entered the house by the back door leading into the kitchen, which he shut and latched on entering, and after extinguishing the gas-light therein he went to his room adjoining the kitchen, and lighted the gas; that he was in the act of turning off the gas before retiring, when he heard the outside kitchen door, by which he entered, opened; that he at first paid but little attention to it, thinking that it was opened by some one connected [280]with the house, so he put out the gas and got into bed; but hearing nothing further, he became suspicious, and got up and partly opened the door between his room and the kitchen, and saw the defendant in the act of opening the door of a small closet, which, after looking into and picking up one or two things, he, the defendant, passed to a small slide door between the kitchen and dining-room; that after lifting the slide and looking into the dining-room, he went to a table, from which he picked up a parcel; that the defendant then opened the pantry door, and while he was in the act of searching a drawer thereof, witness “ yelled out to him and asked him what he was doing”; that defendant “turned, shook his hand, and hissed at him, ‘Don’t make any noise.’” At this time the companion of the defendant appeared, and they started towards witness, who asked them what they wanted. After some hesitation, one of them answered that they wanted something to eat, and were looking for it.

Witness, being frightened, started to the closet to get something for them to eat, but, on turning, saw that they were whispering to each other. Notwithstanding this, he got some food and set it out for them; one partook of a small piece of bread, and the other drank a little tea. They then shook hands with witness, and, on bidding him good-night, said that they were not burglars, but had been on a spree. The defendant stated that he was an attorney, residing on Montgomery Street, in San Francisco, and that his name was Mullen; the other man stated that he resided on Washington Street, in Oakland, and gave his name and the number of his residence, which witness failed to remember. Witness further testified that they did not drink any water from the faucet in the kitchen after they entered, and that it could not have been drawn by them without his hearing it.