People v. Barraza

WILSON, J. Appellant has appealed from the judgment convicting him of the crime of burglary in the first degree and committing him to the Youth Authority of the State of California, and from the order denying his motion for a new trial. Having waived a trial by jury, he was tried by the court. The principal ground urged by him for reversal is that the evidence of the complaining witness is so inherently improbable that it is incredible.

The circumstances of the crime and the connection of appellant therewith were established entirely by the testimony of the complaining witness. She testified that on Christmas Eve, 1946, she and her husband left their apartment, which is located on the ground floor of the building, and went to a beer garden where they drank beer and played skee ball until about 11 o’clock. During that time the witness, her husband and others consumed approximately nine pitchers of beer. Since the size of the pitchers is not indicated by the evidence the amount of beer imbibed by the group is left to conjecture. About 11 o’clock they went to a friend’s home where they drank both whiskey and beer; the prosecuting witness had three or four drinks of whiskey in a 1%-inch glass with “some kind of chaser.” About 2:30 o’clock in the morning she and her husband returned to their apartment. They had a quarrel and he left the house. She obtained a blanket, reclined on a [663]couch fully dressed and spread the blanket over her body. The apartment was lighted.

Some time after 4 o’clock in the morning (the call to the police was at 4:47) she was awakened and found two Mexican boys standing near the foot of the couch. The blanket had been removed, her clothes had been pushed up around her neck and she was nude from the waist down. Stating to the boys that she wished to call the hospital to ascertain the condition of her sick child, she went to the telephone and called the police, whereupon the boys ran away. When the police came she found that her husband’s watch, which had been lying on top of the radio, also several packages of cigarettes, were missing. A slit had been made in the window screen next to the lock on the front door so that a hand could be inserted and the knob of the Yale lock on the inside of the door could be turned. About a week later she saw appellant at a nearby grocery store and told her husband that he was the hoy who had been in their apartment. The boy departed before he could be apprehended. Some time later she again saw appellant and called the police who arrested him.