People v. Miller

• Decision Date: 18 January 1950
• Docket Number: Cr. 684
• Citation: 95 Cal.App.2d 631,213 P.2d 534
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. MILLER.

Page 534

213 P.2d 534

95 Cal.App.2d 631

PEOPLE v. MILLER.

Cr. 684.

District Court of Appeal, Fourth District California.

Jan. 18, 1950.

Rehearing Denied Jan. 27, 1950.

Stephen W. Edwards, San Bernardino, for appellant.

Fred N. Howser, Attorney General, Norman H. Sokolow, Deputy Attorney General, for respondent.

MUSSELL, Justice.

The defendant was accused in three counts in an Information filed by the District Attorney of the County of San Bernardino of the crime of Burglary of a phone booth. He was tried by the court without a jury and found guilty of Burglary in the second degree. The sole contention of the defendant is that the evidence was insufficient to show that the structure in question could be burglarized.

The evidence produced by the prosecution was that the California Water and Telephone Company maintained a phone booth at Angel Cafe, Morongo Valley, in San Bernardino County. The structure was fastened directly to the cafe building and was a standard telephone booth containing a pay telephone. The booth contained an alarm in the phone box to notify the company of attempted thievery of the money therefrom, and aniline dye in dry powder form was placed in the coin box and sprinkled on the money therein. The effect of the dye, when coming in contact with the skin, is to produce a purple discoloration difficult to wash off.

The defendant drove up to the cafe, opened the door of the telephone booth and with a large hammer broke the coin box and took the money therefrom. Shortly thereafter the defendant was apprehended and at the time of his arrest, his hands and clothing were found to be discolored with the aniline dye. The arresting officers also found the same purple discoloration on the hammer and a coin found in defendant's possession.

The defendant admitted breaking into the telephone booth and removing the money on the dates specified in the three counts of the Information and the sufficiency of the evidence to sustain a conviction is attacked on the sole ground that a telephone booth is not a building within the meaning of Penal Code, section 459, which section provides: "Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, trailer coach as defined by the Vehicle Code, vehicle as defined by said code when the doors of such vehicle are locked, aircraft as defined by the Harbors and Navigation Code, mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary."

The Information charged that the defendant wilfully, unlawfully and feloniously entered a "phone booth", occupied by the California Water and Telephone Company, and a Demurrer was filed thereto, after which it was stipulated by the District Attorney, the defendant and his counsel that the Information be amended more particularly describing the telephone booth in the following language: "The phone booth being a structure having a square roof and a square floor with a distance of 74' between them. Between three of the corresponding edges of the floor and roof run solid walls. For purposes of terminology, the two of these three walls that face each other shall be referred to as the side walls, the third wall, which is connected to both of the side walls, shall be referred to as the back wall. To the exposed edge of one side wall, that is the edge that is attached neither to the roof, the floor nor the back wall, is attached a board. The width of this board runs parallel to the back wall, its thickness runs parallel to the side walls and its length runs from the floor to the ceiling. This board projects at right angles from the side wall to which it is attached toward the opposite...