People v. Shaw

BARNARD, P. J. A jury found the defendant guilty of burglary in the first degree, and he appeals from the judgment and from an order denying his motion for a new trial. Although ably represented by counsel appointed by the court, he has personally filed a reply brief.

In the early morning of January 22, 1951, someone entered the home of Mr. and Mrs. Faretta in Fresno, and took a box of raisins. Mrs. Faretta had retired at 12:30 a.m., after hooking the screen door to the back porch and leaving a light in one room for her husband. Mr. Faretta returned about 1 a.m., turned off the light and went to bed.

Mr. Narvais, who lived in a house, the backyard of which abutted that of the Farettas, returned home about 2 a.m. Hearing a noise like somebody cutting a screen, he walked to the rear fence and saw a man in a long dark coat standing by the door, of the screen porch, of the Faretta house. He went to a near-by police station and reported the matter. Three officers, who left the police station at 2:10 a.m., went back with him and spread out, looking for the intruder. At 2:15 a.m. one of the officers arrested the defendant as he entered the alley from the backyard of the house between the Faretta home and the alley. The defendant had on a dark overcoat, and was carrying a box of raisins. Mrs. Faretta identified this box of raisins as belonging to her, and as having been on the back porch -when she went to bed. The screen in the back porch door had been cut, and the lights in the [183]Paretta house had been turned off by moving a switch in the meter box at the rear, stopping an electric clock at 2:06. A knife was found in the defendant’s pocket. Mr. Narvais identified the defendant as the man he had seen by the back door of the Paretta home. The defendant told the officers that a man had given the raisins to him, and later told them that a man named “J. W.” had given them to him.

The defendant testified that he left the “Five and Ten” café, which was about a block from the Paretta home, after 2 a.m.; that he met a man whom he knew as “J. W.,” who sold him these raisins for 15 cents; that he went past the Paretta home and entered the alley on his way to his home farther down this alley; and that when he had gone a short distance a police officer entered the alley and ran to him. A waitress in the Five and Ten Café testified that the defendant left the café shortly after 2 a.m., when it closed.

The appellant first contends that the evidence is insufficient in that it was not proved beyond a reasonable doubt that he is the person who entered this house and took these raisins. It is argued that the testimony of Narvais, who was the only one who saw the man at the time the screen was probably cut, was inherently improbable for three reasons: (1) Narvais did not see the man’s face; (2) he testified that the fence between the two yards was 8 or 10 feet from the back door of the Paretta home, whereas one of the officers testified that he thought the distance was about 35 or 40 feet; (3) that at the preliminary hearing Narvais said he saw the man in the porch while at the trial he said he saw the man by the door of the porch. It is further argued that the appellant had no motive to commit burglary since he had $5.43 in his pocket when he was arrested. Also, that 15 minutes elapsed between the time Narvais saw the man and the time appellant was arrested, and it would be unreasonable to believe that he would remain on the porch for 15 minutes when all he found was a box of raisins.