People v. Millen

BARNARD, P. J. On May 25, 1956, an information was filed charging the defendant with the crime of burglary alleged to have been committed on or about March 20, 1955. The defendant pleaded not guilty, waived a jury trial, and was found guilty by the trial judge. He has appealed from the judgment sentencing him to prison.

Early in the evening of Saturday, March 19, 1955, a Miss Bittner left her apartment accompanied by a Mr. Ehle. They returned to the apartment shortly after midnight. As they entered the living room they saw a man’s head peering through the doorway between the kitchen and the living room. The man fled and Mir. Ehle followed him outdoors to the rear. When he could not see the man outside he returned, picked up a pocket knife, and went out to the front. He then saw a black or dark MG automobile with a white canvas top parked in the street, the engine of which was running. He approached the car in the hope the occupant might have seen the intruder leave. When he was 3 feet from the car it suddenly was driven away with such speed that it was burning rubber. Mr. Ehle slashed the canvas top of the car as it passed him, and then threw the knife at the rear of the car. He did not hear the knife hit the street, and after a thorough search the knife could not be found. It was then discovered that Miss Bittner’s purse had been taken from the apartment. The purse was returned to her the next day by a small boy who said he found it in an alley. Two or three days later, Mr. Ehle saw a black MG automobile with a white canvas top, which belonged to the defendant, and reported it to the officers. An officer examined this car and found a hole about six inches square cut in the canvas top, at the same spot where Mr. Ehle had slashed the top of the fleeing MG. There was also a %-inch slit in the cover of the tire on the rear of the car. This slit went through into the tire itself, and was on the top portion of the tire facing outward. The defendant was questioned [572]by the officers but left the San Diego area before the investigation was completed.

Appellant’s only contention is that the evidence is insufficient to sustain a conviction. It is argued that there was a lack of positive identification of the appellant as the man seen in Miss Bittner’s apartment; and that the other circumstantial evidence is insufficient to show that the appellant is the person who committed this burglary.

Mr. Bhle, on the stand, positively identified the appellant as the person whose head he saw sticking through the doorway. When appellant’s counsel asked him whether he had not on March 23, when he had seen the appellant at his sister’s home, stated to the officers that he was “very sure” that it was the man, he replied that he believed that he had said something like that. When he was asked if he had not at that time told the officers that he thought it was the man but could not say positively, he said he did not remember saying that. Miss Bittner on the stand pointed to the appellant and testified that she believed he was the man whom she had seen with his head sticking through the door. She admitted that on March 23, when she had seen the appellant at his sister’s home, she had stated to the officers that she thought this was the man but could not say positively because she did not want to convict an innocent man. She also testified that she stated at that time that she was very sure that this was the man.