People v. Escoffen

STURTEVANT, J. The district attorney filed an information against William Pierce, Ernest Vidal, Gerald Mc[260]Mahon and this defendant, charging them with having committed the crime of burglary. All pleaded not guilty. Before the trial William Pierce changed his plea to guilty. The other defendants were tried before the court sitting with a jury. The latter returned a verdict against all of the defendants on trial and found the offense to be burglary in the second degree. Eseoffen made a motion for a new trial and also one for probation. Both motions were denied. Prom the judgment of conviction and from the order denying his motion for a new trial the defendant Eseoffen has appealed.

He presents and argues two points. He contends that the evidence was insufficient and in that connection he asserts that the evidence of identification was insufficient. The point may not be sustained. All four of the persons named above left the Uptown Club on Market Street, entered an automobile owned by the defendant Vidal, and started out to locate a place to burglarize. They started on their ride about 11:30 P. M. on September 20, 1935, and drove to different places. At about twenty minutes after 2 the next morning a disturbance was heard in front of the store located at 1021 Golden Gate Avenue. On the opposite side of the street there is an apartment house under the management of Leo Bercu. One of his tenants was Harry Mervine. The latter testified that his attention was attracted to the noise across the street. He looked out of the window and saw two men at first walk away from the store at 1021 Golden Gate Avenue and then return, break open the door, and enter. After they entered the store Mervine reported to Bercu and the latter called the police. Before the police arrived, Eseoffen came out, crossed Golden Gate Avenue, and stood near the automobile. Still standing at the window and watching Eseoffen, when the police arrived Mervine called from the window informing them that one person had gone into the store and was still in there and that Eseoffen, who stood by the automobile, had just come out. Later Mervine went down stairs and there saw Eseoffen and the other defendants, all of whom were placed under arrest. Both Mervine and Bercu appeared at the trial and identified this defendant. Under these circumstances we think it is perfectly clear that it may not be said the evidence of identification was insufficient.

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