People v. Johnson

BARNARD, P. J. The defendant Johnson and one McCoy were jointly charged with burglary and with prior convictions. They admitted the prior convictions, and a jury found them both guilty of second degree burglary. Johnson appeals from the judgment and from,an order denying his motion for a new trial.

Sometime after 7 p. m. on May 16, 1951, someone broke into the office of a construction company in San Diego [791]and took a book of blank checks and a cheek protector. At 10:55 p. m. on that night two police officers were driving through a cemetery when they saw a Ford car parked with its lights out, and headed toward them. The right door of the car was open and someone standing by that door made a throwing motion toward an adjoining ditch. This person then got in and closed the door, the lights went on, and the car started ahead. The officers stopped it, finding McCoy in the driver’s seat and the appellant on the other front seat. The stolen checkbook was found under the right front seat, and the car was taken to a garage. The next morning a chisel was found in that car, and the stolen check protector was found in the ditch about 5 feet from the point where the Ford was parked when the officers first saw it. It was conclusively shown that this chisel had been used in opening a window of the burglarized premises.

It is first contended that the evidence is purely circumstantial and not sufficient to support the verdict and judgment. The appellant concedes that a burglary was committed during which the checkbook and check protector were taken; that this checkbook was found in the car in which he was riding; that this check protector was found in a ditch adjacent to the place where this car was first seen; and that the chisel found in this car was used to open the window in the burglarized premises. On the hearing of the motion for a new trial it was further conceded that the evidence was such as to compel an inference that the appellant threw the check protector into the ditch and that he did this with a guilty knowledge of what he was doing, but it was argued that while this might show that he was guilty of receiving or being in possession of stolen property, or of some other crime, it did not show that he participated in this burglary. It is here argued that there is no evidence that the appellant entered this building or in any way assisted anyone else in committing the burglary; that the appellant may be connected with the offense charged only by piling inference upon inference; and that the verdict of guilt rests entirely upon guess, conjecture and surmise.