People v. Morris

WOOD (Fred B.), J. Convicted on two counts (burglary and larceny), defendant claims the evidence is insufficient to support the burglary charge; i.e., that proof is lacking that he entered the building (Hale’s Department Store, San Jose) “with intent to commit theft therein” as charged in the indictment, based upon Penal Code, section 459. He does not question the sufficiency of the evidence to support the larceny charge that he feloniously took money in excess of $200, the property of Hale’s Department Store. (Pen. Code, § 487.)

Defendant correctly concedes that if a fair and logical inference can be drawn that he entered the building with intent to commit theft, the evidence is sufficient. (People v. Smith, 84 Cal.App.2d 509 [190 P.2d 941]; People v. Franklin, 106 Cal.App.2d 528 [235 P.2d 402] ; People v. Stewart, 113 Cal.App.2d 687 [248 P.2d 768].) He contends that in this case such an inference cannot be drawn. Our examination of the record convinces us it can be.

Defendant was supervisor of the janitorial staff at Hale’s and was being trained to perform the work of repairing cash registers. Upon occasion he substituted for the watchman whose duty it was to open the store in the morning and close it at night after all other employees had left. Upon the weekend here involved (Saturday to Monday, May 14-16, 1955) the watchman was absent and defendant was assigned his duties. On Saturdays the store closed for business at 5:30 p.m. Upon this Saturday, according to his testimony, defendant closed the store, locking all the doors and left about 7:50 p.m., about half an hour after all of the other employees had left. Upon opening the store the following Monday morning he phoned the store manager and the police that the cash registers had been burglarized.

Some 44 to 47 cash registers had been opened and $3,853 in money and $400 to $700 in Hale’s “script” taken. Defendant had a key by means of which, and the tripping of a certain device, these cash registers could be opened from the rear. He knew how to work this device. Only five registers had been unopened, three of which could not be opened by [533]means of his key and two of which were in plain view of anyone who might be passing by the store.

The burglar alarm system was such that no one could enter the store without setting off the alarm except through a certain door which had a lock which recorded the time of opening and closing and the particular key used in doing so. The opening of this door would cause the alarm to sound unless the latter were turned off within five minutes. This lock recorder indicated that this door had been locked at 7:54 on Saturday, May 14, by means of defendant’s key, and not again opened until 3 ;49 a.m. on Monday, May 16, by use of defendant’s key. It is a fair inference that the money and the script were taken after the other employees left and before defendant left the store on Saturday, May 14.