People v. Turney

BARNARD, P. J. The appellant and one Wilson were jointly charged with burglary. Wilson was also charged with prior convictions for robbery, and the appellant with prior convictions for burglary. They pleaded not guilty, but admitted the prior convictions. A jury found each defendant guilty of burglary in the second degree, and Turney has appealed from the judgment.

At 10:25 p. m. on the night of November 17, 1953, a police officer, while walking his beat on El Cajon Boulevard in San Diego, saw the defendant Wilson in the front room of a café. Wilson ran toward the rear of the café and the officer ran around the building in an attempt to stop him. The officer found a rear window open, but no one there. On his return to the front of the building he found the front door open. On investigation it was found that a screen had been removed from the window of a storeroom in the rear and the window opened, and that a door leading from the storeroom to the front room was off its hinges and leaning against the wall. The owner of the café testified that the doors were locked when she left the premises earlier that evening, and that when she left there were five Oh Henry candy bars in a box by the cash register. These candy bars were gone and a lot of material near the cash register was pilfered and pulled out.

A 1951 Ford (which belonged to Wilson’s father) was [260]parked near by. The officer noticed that its radiator was warm, and decided to keep an eye on it. Two hours later he saw Wilson and this appellant pouring gasoline from a one-gallon can into the gas tank of this car. They told the officer that they had run out of gas and had just walked down the street to get some. The officer checked the gasoline gauge in the car and it registered “between % and a full tank.” The defendants were arrested and an Oh Henry candy bar was found in Wilson’s pocket. Wilson’s fingerprints were found on the door which had been removed from its hinges. On being questioned by the officers the appellant stated that he and Wilson had tried to enter by the back door but were unsuccessful; that they then removed the screen, raised the rear window and crawled in; that he removed the pins from the door with a screwdriver belonging to Wilson; and that they then removed the door and entered the main part of the café. Wilson told the officers that when he saw an officer looking into the window he ran toward the back; that he then returned, opened the front door, and ran out; and that he and the appellant met a short distance away and later returned to the car with a can of gasoline.