People v. Jordan

• Decision Date: 21 June 1962
• Docket Number: Cr. 4065
• Citation: 204 Cal.App.2d 782,22 Cal.Rptr. 731
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William L. JORDAN, Defendant and Appellant.

Page 731

22 Cal.Rptr. 731

204 Cal.App.2d 782

The PEOPLE of the State of California, Plaintiff and Respondent, v. William L. JORDAN, Defendant and Appellant.

Cr. 4065.

District Court of Appeal, First District, Division 1, California.

June 21, 1962.

John L. Cordoza, San Francisco, for appellant, under appointment of District Court of Appeal.

Stanley Mosk, Atty. Gen., John S. McInerny, Derald E. Granberg, Deputies Atty. Gen., San Francisco, for respondent.

CONLEY, Justice Assigned.

The defendant, William L. Jordan, was convicted of burglary of the first degree. He appeals on two grounds, claiming that the evidence was not sufficient to sustain the conviction and that the proof failed to show that the burglary was of the first degree.

Mr. and Mrs. Willie Preston were the victims of the crime. Both of them had to be absent from their home at 140 Kerwin Avenue, Oakland, during the late afternoon and substantial parts of the Sunday night in question. Mr. Preston left their residence at about 2:30 in the afternoon and did not return until 1 o'clock the next morning, after neighbors had notified him that his house had been broken into. Mrs. Preston left the Kerwin Avenue address at approximately 4:30 p. m. and did not return until 7 o'clock the next morning.

The discovery of the crime was made by a neighbor, Mrs. Eddis Mae Smith, whose home is at 124 Kerwin Avenue. Soon after midnight, while on her way home, Mrs. Smith was walking along El Verano toward Kerwin when a car driven by the defendant passed, moving slowly. The automobile turned down Kerwin shortly before Mrs. Smith left El Verano and walked toward her own home along the sidewalk near the Preston residence. The car driven by the defendant continued ahead of her, and it later passed her again. Then the automobile stopped and the defendant stepped out, crossed the street and walked toward the Preston residence; apparently seeing Mrs. Smith, he diverted his route to a car parked in the driveway at 148 Kerwin; then he stopped, turned, and went back to his own car, got into it and drove away. As Mrs. Smith passed the Preston home she saw a television and a hi-fi set on the porch; the front door was closed, and there were no lights. Immediately before, she had seen a man and woman walking slowly along the sidewalk near the Preston home.

Mrs. Smith passed on to her own house, and after talking briefly with her husband, took a revolver from under the mattress on her bed and again went outside. The defendant's car had returned and was parked across the street from the Preston home. Mrs. Smith walked to the corner of her lot nearest her neighbor's and watched as the defendant got out of his car and crossed the street. At that time a man and woman were standing on the porch of the Preston home. The defendant had left the door of his car open and the lights on.

As the defendant placed his foot on the bottom step leading to the front porch Mrs. Smith shouted 'Halt' and fired a shot into the air. The man and woman on the porch immediately ran away along Kerwin Avenue, in the opposite direction from where Mrs. Smith was standing; the defendant ran back to his car, held the door open, and backed up the length of Kerwin. Mrs. Smith positively identified appellant as the operator of the car, but she could not be sure that the man and woman she had seen earlier near the Preston home were the same persons who were later on the porch.

Mrs. Smith hurried to the porch of the Preston home, where she found that a window had been broken; the front door was closed. She stayed on the premises while another neighbor summoned the police.

When the Prestons had left home on the previous afternoon their hi-fi and television sets had been inside the house in their accustomed places. Mr. Preston stated that he also found one of his wife's dresses on the front porch, and Mrs. Preston testified that a cigarette lighter had been stolen from her bedroom, and a jacket which had been in the garage was also apparently missing.

The neighbor, Mrs. Smith, testified that she saw the automobile which had been driven by the defendant on the following evening; she was riding with Mrs. Preston when she recognized the car and pointed it out. The two went back to take down the license number and then summoned the police, but by the time they returned a second time to the place where the automobile had been, it was gone.

Shortly afterwards, on the Tuesday following the burglary, Mrs. Smith was riding with a friend when she again passed the same car parked on the street. They sought out Mrs. Preston, and she called a police inspector. The two women returned to the place where the automobile was parked; after the police arrived the appellant came out of a neighboring house, and Mrs. Smith identified him as the person she had seen at the Preston home at the time of the burglary, largely by his unusual method of walking. The appellant's automobile was also identified positively by Mrs. Smith, principally by a brown spot on the back of the car.

Following his detention, the appellant admitted to the police that he owned the car. Examination of the automobile showed that a key had been broken off in the ignition and that the ignition wires were down. The appellant made a short statement at the city jail and answered a number of questions asked by the police. He claimed that he had gone to church on the Sunday morning of the burglary and returned home at 2 p. m., took a nap, arose at 5 or 6 p. m., went to a liquor store and stayed there until 8:30 p. m. without buying anything. He further stated that he had left his car in a parking lot and had ridden home with a man named Joe. He had no idea where to reach Joe. He said that he had a few deinks with his sisters, went to bed and did not get up again until 7 o'clock on the following morning, when he went to work. He stated he had broken the key off in the ignition on Sunday at about 7 p. m. in the liquor store parking lot and that he loaned the car to some men whose names he had forgotten. They returned the car Monday morning. Later, he said he did not know who borrowed the that he had a few drinks with his sisters, Finally, he admitted that his previous accounts were false, but he refused to tell where the car had been on Sunday.

The appellant did not take the stand at the trial. After the submission of the case, the court, sitting without a jury, found him guilty of burglary of the first degree. Appellant's motion for a new trial was denied, and he was sentenced to state's prison. Appellant appeals from the judgment and from the denial of his motion for a new trial.

The conviction depends exclusively on circumstantial evidence. As burglary is a crime of stealth, dependence must be placed in most cases upon circumstantial evidence. In People v. Colletta, 100 Cal.App.2d 1, 5, 222 P.2d 922, 924, it is said: 'In a prosecution for burglary the evidence on which a defendant is convicted may be purely circumstantial and if substantial, as in the present case, is sufficient to support the judgment of guilty.'

In Fricke, California Criminal Law (8th ed., 1961) page 310, the author comments: 'Burglary being one of those crimes which are usually committed in secret, the proof of the corpus deliciti generally must rest on circumstantial evidence alone.' This is just such a case.

The corpus delicti was proven here by proper inferences based on uncontradicted evidence. The owners of the home left in the late afternoon without having authorized any person to remove any of their property. The doors were locked. Upon their return they found that a window had been broken and that someone had entered the house with the obvious intention of stealing, for the removal of the television and hi-fi sets to the front porch, the abstraction of the cigarette lighter, the moving of the dress of Mrs. Preston to the front porch, all indicated that the unauthorized person who had entered the dwelling did so with the intent to steal.

Corpus delicti in a burglary case may be established by proof that property was stolen from a locked dwelling house in the absence of the owner. (People v. Willison, 116 Cal.App. 157, 159, 2 P.2d 543; People v. Russell, 120 Cal.App. 622, 623, 8 P.2d 209.) Burglarious intent can reasonably be inferred from an unlawful entry alone. (People v. Stewart, 113 Cal.App.2d 687, 691, 248 P.2d 768.) Even if no crime be committed after the entry, circumstances such as flight after being hailed by an occupant of the building (People v. Noon, 1 Cal.App. 44, 81 P. 746), the fact that the building was entered through a window (People v. Soto, 53 Cal. 415) or through a doorway which previously had been locked (People v. Sturman, 56 Cal.App.2d 173, 132 P.2d 504; People v. Dreyer, 71 Cal.App.2d 181, 162 P.2d 468) without reasonable explanation of the entry, will warrant the conclusion by a jury that the entry was made with the intention to commit theft.

Having established the fact that a burglary had been committed, it was next the duty of the prosecution to show that the defendant was connected with the crime as a participant. It was not, of course, necessary to prove that the appellant actually entered the dwelling house, because one who aids and abets another to commit a burglary is equally guilty as a principal. (Pen.Code, §§ 31, 971; People v. Bonilla, 124 Cal.App. 212, 214, 12 P.2d 64; People v. McClure, 133 Cal.App.2d 631, 633, 284 P.2d 887.)

The following elements of proof could properly be considered by the trier of fact in establishing the guilt of the defendant as one who aided and abetted the person or persons actually entering the house:

(1) Appellant drove about the area in question in a stealthy and suspicious manner in the middle of the night, and he twice approached the Preston home. The first time he was frightened away by the presence of Mrs. Smith, the neighbor; the second time he actually set foot on the Preston porch step and was...