People v. De Swan

SHINN, P. J. James Clifford De Swan was charged by information with burglarizing an automobile belonging to Jack S. Gabrich. It was also alleged that he had previously been convicted of burglary and had served a term in state prison. He admitted the prior conviction. In a jury trial he was found guilty of second degree burglary and he appeals from the judgment.

There was evidence of the following facts: On June 1, 1959, Gabrich and a Miss Reed drove to Cabrillo Beach in the former’s Thunderbird convertible. Gabrich parked and locked the car and rolled up the windows, leaving in the glove compartment a wallet containing his driver’s license, various identification cards and $80 in bills. At about 2 p. m. Miss Reed looked up at the car and saw a man resembling defendant walk around it three or four times; the man was holding a white towel or tee shirt. Miss Reed then saw him enter an old dull-colored car and drive away. When Gabrich and his companion returned to the Thunderbird the window was cracked and forced open and the wallet was gone.

June 6th, Officer Robert Platt observed defendant walking around the cars parked in the Belmont Shore parking lot in Long Beach. De Swan looked into about 20 cars; he was carrying a white towel. After driving away in a dull-colored 1940 Pontiac, defendant returned, parked, approached a late model sedan and placed the towel against the window on the passenger’s side. Then he went to another ear and walked around it. The officer observed a red object protruding from the towel. As Platt approached him defendant got [564]into his own car and turned on the ignition. Platt identified himself and prevented defendant from starting the ear. He retrieved' the towel and a screw driver with a red wooden handle from the front seat. When asked for identification defendant exhibited Gabrich’s driver’s license; upon being asked to spell the name, he spelled it “Gabrech.” Defendant told the officer that the car he was driving was owned by one Duncan, an attorney he had met in a bar the previous night. (It was stipulated that the ear belonged to Duncan.) Platt retrieved Gabrich’s wallet and placed De Swan under arrest. Defendant said that he was a bartender and a lock salesman. When taken to the police station defendant was recognized by another officer, but at first denied that his name was De Swan. He explained that he found the wallet in San Pedro.

Officer J. A. Henze had a conversation with defendant two days later. De Swan said that he did not know where he found the wallet, declined to explain why he was using Gab-rich’s identification, and denied being at Cabrillo Beach on June 1st. In a later conversation with Henze defendant said that he found the wallet wrapped inside a handkerchief in some shrubbery at the beach; he carried Gabrich’s identification in case he was stopped by the police as he was afraid of his parole officer. He admitted being at Cabrillo Beach on June 1st but denied breaking into any cars.