People v. Robinson

MUSSELL, J. Defendant was found guilty by a jury of a violation of section 464 of the Penal Code (burglary with explosives), as charged in count one of the information filed against him by the district attorney of Fresno County. He was also found guilty of violation of section 12353 of the Health and Safety Code (possession of an explosive, to wit, tetratol) and violation of section 12354 of the Health and Safety Code (wilfully and maliciously placing an explosive, to wit, tetratol, in a building of the Pacific Tent and Awning Company), which offenses are charged in counts four and five of said information. He was found not guilty of two other offenses charged in counts two and three of the information, to wit, wilfully and unlawfully entering a blasting powder storage bunker with intent to commit theft therein, and wilfully and unlawfully entering a storage bunker for explosive detonation caps with intent to commit theft therein. Three prior convictions charged were admitted by the defendant. His motion for a new trial was denied, he was sentenced to state’s prison and appeals from the judgment of conviction and the order denying his motion for new trial.

At about 5:20 a. m., on May 17, 1956, police officers, who had information concerning a planned burglary, went to the building occupied by the Pacific Tent and Awning Company in Fresno. When they entered the building, they observed the defendant running through it. He was making a turn in the vicinity of a bench and dropped a piece of black cord on it. He was commanded to halt, which he did, and was taken into custody. He was asked “if he had anything set to go there” and replied, “No.” His eyes were bloodshot but he did not appear to be under the influence of intoxicating liquor and was steady on his feet. The officers found a heavy duty electric cord with a male plug on the end of it lying on the bench near which the defendant had been observed and there was an electric light socket about 3 feet from the end of the cord. This cord led to wires which were connected to an electric blasting cap, which was taped onto a block of tetratol, which was in turn taped onto a safe. The rear of the safe appeared to have been beaten and pounded with a heavy object. [344]A large sledge hammer was lying on the floor at the hack of the safe and a chisel was lying on a desk near the safe. An attempt had been made to nse a chisel on the safe and the odor of tear gas was very strong close to it.

Gordon Gouldy, who informed the police officers of the planned burglary by defendant, testified for the prosecution at the preliminary examination but could not be found at the time of trial. His testimony at the preliminary examination was read into the record at the trial, over objection by the defendant, and he bases his appeal herein on the grounds that the prosecution failed to show that due diligence had been exercised in attempting to locate Gouldy; that his evidence was material to the issues and without which a conviction would have been doubtful; and that the trial court erred in admitting his testimony in evidence.