People v. Barnum

• Decision Date: 24 January 1957
• Docket Number: Cr. 1215
• Citation: 305 P.2d 986,147 Cal.App.2d 803
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth P. BARNUM and Alfred Bundy, Defendants and Appellants.

Page 986

305 P.2d 986

147 Cal.App.2d 803

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth P. BARNUM and Alfred Bundy, Defendants and Appellants.

Cr. 1215.

District Court of Appeal, Fourth District, California.

Jan. 24, 1957.

Hearing Denied March 20, 1957.

John H. Marshall, Los Angeles, Harold J. Ackerman, Los Angeles, of counsel, for appellants.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.

COUGHLIN, Justice pro tem.

A market, drugstore and post office in Buttonwillow, California, were burglarized in the early morning of November 26, 1955, at about 4 o'clock. Shortly thereafter, the local office of the sheriff sent out an alarm; a road block was set up on Buttonwillow highway; a few minutes later a deputy sheriff observed an automobile going easterly along this highway and gave chase; the automobile increased its speed; its lights were turned off and on; the sheriff's car increased its speed up to 85 miles per hour and displayed a red light for a mile and a half and sounded a siren for three-quarters of a mile before overtaking the pursued automobile which was occupied by the defendants, who were taken into custody and charged with the burglaries in question. The informations accusing the defendants of these offenses also charged the defendant Bundy with two prior convictions and the defendant Barnum with three prior convictions.

At the time set for trial the attorney for defendants waived a trial by jury and proceeded to trial. The court found each of the defendants guilty of each of the burglaries and also found that the allegations with respect to the prior convictions were true. Motions for new trial were made and denied. Judgments of imprisonment in the state penitentiary followed. This appeal is from the judgments and orders denying defendants' motions for new trial.

The defendants contend that the evidence is insufficient to identify them as the persons who committed the burglaries, and it was error for the court to try the case without a jury as they did not waive a trial by jury in the manner required by law.

Circumstantial evidence is relied upon to prove the defendants were the persons who committed the crimes in question. The identification of the perpetrator of an offense may be established entirely by such evidence. People v. Goodall, 104 Cal.App.2d 242, 247, 231 P.2d 119; People v. Mattmueller, 30 Cal.App.2d 532, 89 P.2d 838.

The three buildings which were burglarized were in close proximity. Attempts to break into the market were made in several places; a board was pried off the outside of a walk-in refrigerator and sawdust insulation fell out; at another section of this refrigerator, where an entry was attempted, fused silica insulation dropped out; and at a third place, which was an old ice chute, red fiber insulation was uncovered. Samples of each of these insulating materials were taken to a forensic chemist who found particles of similar material in the clothing of defendants which had been delivered to him for examination. There were heel prints in the rear of the market similar to prints which could have been made by the heels on defendants' shoes.

In the post office the burglars pried open two safes. One of them was 'peeled'. In doing so a type of white insulating substance, known as fire clay, was scattered over the floor. This fire clay contained a gold-colored mica which the forensic chemist described as being the same in appearance and composition as samples of mica in a white clay which he removed from the shoes, socks, trousers, cuffs and coat pockets of the defendants. Samples of green paint from the two safes were furnished the chemist and he testified that these were similar in appearance and composition to paint chips which he removed from the shoes and clothing of the defendants. In the rear of the post office there were heel prints similar to those near the market, and which could have been made by the defendants' shoes. From one of the safes a green box containing money was removed. This box was found on the morning of the burglary alongside the highway over which defendants had traveled, during what appeared to be an attempt to flee from the officers pursuing them, at a point about a mile from where they were stopped. Money was scattered in the vicinity.

In the drugstore, the burglars had ransacked drawers in the prescription room and stolen some narcotics. On the floor was a blue bag containing a drill, hammer, punch and other instruments useful in forcing a safe. In this bag, and on the drill, hammer and punch, there were paint chips similar physical appearance and chemical composition to the paint chips found on the clothing of the defendants and the samples taken from the post office safes. Also in this bag were mica, reddish wood fibers and fused silica particles similar to those found in the clothing of the defendants and the samples from the market and post office. There was a piece of cardboard on the floor with a heel print on it which an officer testified was similar to the other heel prints heretofore described. Additional heel prints, with the same design, were found in the rear of the store. On the head of the hammer in the blue bag was a fragment of brass and, on examination, a fragment of brass dropped from the shoes of the defendant Bundy. A man was seen coming from the back door of the drugstore, shortly after the officers had been called, who was described as wearing a faded blue jacket. The defendant Bundy was wearing a powder blue sport shirt at the time of his arrest. This man ran through some brushcovered terrain, along near-by railroad tracks, and was chased by one of the officers, but was not overtaken. The brush was described as tumble weed. When arrested, particles of tumble weed were on the trousers of both defendants. The forensic chemist who had been furnished with samples of tumble weed from the area in question, testified that pods from the tumble weed furnished him, which he described as plant material, appeared to be the same as the plant material found on the defendants' clothing. These pods had characteristics which made them readily identifiable. Along the railroad tracks there were additional heel prints similar to those found in the vicinity of the buildings.

When questioned, the defendants gave an unsatisfactory explanation respecting their presence in the vicinity. Bundy said they left Los Angeles on November 24th and went to San Francisco; that they left San Francisco on November 25th to return to Los Angeles and lost their way; they had been in San Luis Obispo, which is on United States Highway 101, many miles away; they were riding in an automobile belonging to a friend of Barnum, whose name he did not know; and he had been employed in Los Angeles but, with one exception, did not know the names of his employers. Barnum said he was in a predicament and would not talk; to most of the questions asked him he made the reply: 'No comment',...