People v. Brewer

BARNARD, P. J. The defendant was convicted by a jury of burglary in the second degree and has appealed from the judgment and from an order denying his motion for a new trial.

A liquor store in San Bernardino was entered early on the morning of January 6, 1938, and between thirty and forty bottles of whiskey, gin and brandy were removed therefrom, together with two hundred pennies. Entrance had been made through a rear window of the building by removing an iron bar and spreading other bars sufficiently to permit a person to pass through the opening. Shortly before 7 o’clock on that morning the appellant made a purchase at a grocery store, paying for the same with thirty-eight pennies. An hour or two later he attempted to sell some whiskey at another liquor store saying he had approximately twenty-five quarts which he would sell for 50 cents a quart. This was reported to the police and he was taken into custody before noon on that day and identified as the person who had made the purchase with pennies and attempted to sell the whiskey. At that time he denied having had anything to do with the burglary but about two days later he told the officers that on the night in question he had gone to this store with one Lloyd Largent, that they waited until the place closed, which [269]was about 2 o’clock in the morning, that they loosened the bars in the window, and that he went in and took two rolls of pennies and thirty-one bottles of liquor which he passed out to Largent. Through information furnished by the appellant the officers were taken to a place where the liquor had been secreted, and twenty-six bottles of liquor were found which were identified as having come from this store.

On January 12, 1938, after having been fully informed of his rights and that anything he said would be used against him, the appellant made what he stated to be a free and voluntary statement to a deputy district attorney which was taken down by a shorthand reporter, at which time he again described in complete detail the manner in which the burglary had been committed. On January 14, 1938, at the preliminary hearing the appellant took the stand, after being fully advised as to his rights, and described in detail the manner in which he had entered the building and taken the liquor and pennies. Largent also took the stand and testified to the same state of facts. At the trial of this case, however, Largent testified that he had been convicted of committing this burglary, that he had committed the offense alone and that the appellant had not been present. The appellant testified that he had nothing to do with the burglary, that he had been constantly threatened by one of the officers, that he made his first confession because this officer had demanded that he do so and threatened to hold three of his friends unless he did confess, and that he remained in fear of this officer at all times until he got into the superior court. He testified, however, that at no time had he had any fear of the district attorney or of the judge who conducted the preliminary hearing, and all of the officers denied that any force or threats had been used.