People v. Alvarez

WOOD, P. J. In a non jury trial the defendant was adjudged guilty of burglary of the second degree. An allegation that he had been convicted in 1958 of forgery, a felony, was found to be true. He appeals from the judgment and the order denying his motion for a new trial.

A burglary was committed at the home of Mrs. Delgado, at 120 West Avenue 28 in Los Angeles, on December 15, 1962, between 4 p.m. and 7 p.m. The back window screen was torn [749]and the latch had been pulled off the door. Her television and her Christmas gifts had been stolen, closets had been opened, and various articles in the house had been thrown on the floor.

Mrs. Delgado testified that: The next morning, when she went into her back yard, she saw tennis-shoe footprints in a dirt or sand area by the side of her house. On the other side of the yard fence, that is, in her neighbor’s back yard, she saw the same kind of footprints in dirt or sand, which prints were “going” both ways—toward her house and away from it. The neighboring property is a two-story apartment building—with one apartment downstairs and one upstairs. She (witness) saw similar footprints in the dust on the outside stairway leading to the back door of the upstairs apartment. She went up to and knocked on the back door of that apartment but there was no answer. The defendant lived in that apartment. On the porch or platform at the top of the stairway she saw and picked up an earring which was similar to an earring which she had. On the next afternoon (Sunday), while she was looking in a closet of her child’s bedroom, she found a key therein by the side of some suitcases. The closet had been disturbed during the burglary. Later that afternoon, when the police were at her house, she gave the earring and key to them. A photographer from the police department came to her house and took pictures of the footprints. (Photographs of the footprints were received in evidence as exhibits 3, 4, 5, 6, and 7.)

Officer Collier testified that: On December 16, about 4 p.m., when he was at Mrs. Delgado’s house she gave him the earring and the key which she had found. He saw footprints in the back yard of the Delgado house, as indicated by exhibits 3 and 4. He also saw several similar footprints in the back yard of the apartment building next door, which prints were leading toward and away from the fence between the two houses, as indicated by exhibits 5 and 6. He followed the prints to the concrete which was dusty from soot and he could see footprints leading to the stairway in the back. On the back stairway he saw prints of a shoe toe, with a perforated or round dent in the dust or soot, leading upstairs. He went up the stairway to the back door and, using the key which Mrs. Delgado had given him, unlocked the back door but did not go inside. The defendant was not at home at that time. Soon thereafter he saw the defendant unlocking the front door of the upstairs apartment, and he also saw Mrs.