People v. Reaksecker

DEVINE, J. This is an appeal from a conviction of burglary.

At about 4 o’clock in the morning of March 2, 1962, the janitor of a bar on the Napa-Vallejo Highway was forced by a masked man who was carrying a pistol to allow entry to the building and to point out the location of the cash register. He was struck over the head by something which felt like a bag with sand in it. He was forced to lie on the floor and heard an exchange of men’s voices. Shortly after this, the manager of the bar entered, saw a masked man, drew his own gun, fired, killed the intruder, and then saw another masked man coming through the doorway. This was appellant. The manager shot at him, and appellant fled after firing a single shot which, he stated variously, was by accident, or perhaps to discourage pursuit. Appellant was found lying on the front seat of an automobile. A stocking made into a sap by being stuffed with a potato was in the back of the car. He had tossed the gun into a farm machine, had thrown away the stocking mask, and had reversed his jacket because, he said later, the outside had a patch which might be recognized. Both men had been wearing masks made of women’s stockings, in which slits for eyes had been made. A few days before the events described above, appellant had asked his landlady for old stockings, saying he wished to use them as oil filters, and she had given him some which were similar to those used by appellant and the other man, Anderson.

About four years earlier, appellant had been temporarily employed by the bar and he knew where its money was kept, and had told his companion, Anderson, about the money.

In his statement to the police, which was received in evidence, appellant had stated that the purpose of entering the bar was to “get some booze,” not money, that he had worn the stocking because he “didn’t want to be caught in any whiskey beefs—thefts,” that he put the stocking on before entering the building and adjusted it so that he could see through slits that had been made in it.

At trial, he testified that Anderson and he were driving around looking for a place where they could get something to drink, that they stopped at the bar which they later entered, that Anderson went in first and came out with a bottle of whiskey, told appellant to go in, told him to take the gun with [815]Mm, handed him a “rag” and toM him to bring it, too. He testified that he did not put the “rag” (the stocking) over his face until after he had entered and had seen someone’s legs on the floor (this was Anderson’s body), and had then donned the rag to cover a scar and to avoid recognition. He testified that the only plan had been to “get some booze,” that he did not know what time of mormng it was and that he thought maybe Anderson had got the bottle of whiskey legitimately, though he had thought it was a possibility that Anderson had stolen it.