People v. Brink

COUGHLIN, J. The defendant was charged with the offense of burglary, i.e., a violation of section 459 of the Penal Code, and with the commission of a prior offense, i.e., burglary, for which he served a term of imprisonment; denied the charge of burglary but admitted the prior offense; was convicted of the former upon a verdict finding him guilty of burglary in the second degree; was sentenced to imprisonment in the state prison; and appeals from the judgment entered.

The evidence, reviewed under the governing rule on appeal (People v. Daugherty, 40 Cal.2d 876, 885 [256 P.2d 911]), adequately supports the judgment.

A restaurant was burglarized in the nighttime. Among other things, the thief stole a small radio and approximately $50 to $75 in small change, which was taken from a cigarette vending machine. The culprit was cut by a broken window pane through which he gained entry as there was blood around the broken window. The primary issue at the trial was that of identity. On the night in question, at about 2 a. m., the defendant bought some foodstuffs at a market about a mile from the subject restaurant; was carrying a small radio; paid for his purchases with $2.76 in small change; and gave the clerk an additional $2.00 or $3.00 in small change as an exchange at the latter’s request. At about 2:30 a. m., on a highway a short distance from the market, a police officer saw the defendant carrying a small radio and a paper sack, and attempted to interrogate him, but he ran as the officer approached, dropping the sack, which contained the articles purchased at the market. About an hour later the officer located the defendant at his sister’s home, which was in the immediate neighborhood. At this time the defendant denied and then admitted being away from his home after 10 p. m. ; denied and then admitted carrying a radio; asserted that he did not know the whereabouts of the radio, stating that he dropped it as he ran from the officer but, when a search [720]failed to locate the same, agreed that it was possible that the radio might be at his home; consented to a search thereof, which revealed the radio on a bedstand next to his bed; stated that he won it in a poker game, but was unable to satisfactorily identify the place where or the person with whom he had played; and was observed to have a bleeding cut on his hand which he said he received while jumping a fence. The defendant was not held in custody but, with his permission, the radio was taken to the police station. Later, a report of the subject burglary was received; and the defendant, who had left the county in the meantime, was arrested.