People v. Lancey

BARNARD, P. J. The defendant was charged with a violation of section 459 of the Penal Code, it being charged that he entered a dwelling with the intent to commit theft on September 6, 1955. He was also charged with two prior convictions, one for burglary in the second degree and one for a violation of section 503 of the Vehicle Code. He pleaded not guilty, and a jury found him guilty of burglary in the first degree. He appeals from the judgment and from an order denying his motion for a new trial.

On the evening of September 6, 1955, while James Brady was sitting in the front yard of his home in Indio he heard his back door slam twice. This was around 8 p. m. He entered his house but did not see anyone although he noticed [169]that the light on the back porch was out, and turned it on again. About an hour later, he reentered his house and found that his watch, which had been lying on a stand by his bed, was missing. He later discovered that 16 cartons of Camel cigarettes and a pillow slip marked “Brady-102” were also missing. He reported the matter to the police.

The appellant was observed by a witness between 7:30 and 8 p. m. walking down the alley behind the Brady house, empty-handed. Ten or fifteen minutes later this witness saw the appellant return along this alley with a white “bag” in his right hand. Around 10 p. m. that night the appellant approached a bartender at a club in the same block as the Brady house, and offered to sell him cigarettes at $1.00 per carton. The bartender bought two cartons. About the same time the appellant offered a bartender at another nearby club some cartons of cigarettes but did not mention the price when the bartender refused to buy. About the same time a Mr. Humbarger, while on the street, purchased five cartons of Camel cigarettes for $5.00 from an unidentified man. These cigarettes were in a white bag and the bag was turned over to Humbarger. Humbarger immediately left the bag and the cigarettes with the bartender to whom the appellant had sold two cartons of cigarettes, while he went to get something to eat. The bartender placed the bag with its contents under the bar. The next morning the police picked up these cigarettes which, with the watch taken from Brady, were in the pillow slip marked “Brady-102.” Around 10 p. m. on the night of the 6th, the appellant was also observed near a trash can in the next block from the first club mentioned, wiping something from the ends of cartons of cigarettes.

At 4 a. m. the next morning (the 7th) 'Mrs. Brady heard her back door slam. She went to a window and saw the appellant outside the house near a box containing some tools. He picked something out of the box and thinking the man was going toward the front of the house she ran to a front window. She then heard a crash and a light over the back door and the glass in the back door were knocked out. She identified the defendant as the person who was at her house and described his attire, which fitted his clothing at the time he was arrested.