People v. Wilkins

• Decision Date: 15 May 1956
• Docket Number: Cr. 5538
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James William WALKINS and Joseph Grant, Defendants and Appellants.

Page 42

297 P.2d 42

141 Cal.App.2d 557

The PEOPLE of the State of California, Plaintiff and Respondent, v. James William WALKINS and Joseph Grant, Defendants and Appellants.

Cr. 5538.

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

May 15, 1956.

Rehearing Denied May 28, 1956.

Hearing Denied June 12, 1956.

Harold J. Ackerman, Los Angeles, for appellants.

Edmund G. Brown, Atty. Gen., Joan D. Gross, Deputy Atty. Gen., for respondent.

DORAN, Justice.

Appellant, together with James Wilkins, were charged with criminal conspiracy to commit burglary and also the offense of attempted burglary. A jury found defendants guilty on both counts. A motion for a new trial on Count I, Conspiracy, was granted. Motion for a new trial on Count II, Attempted Burglary, was denied. The appeal is from the judgment on Count II, Attempted Burglary.

The appeal of defendant Wilkins was dismissed under Rule 17(a).

Both defendants were charged with prior convictions of burglary. The priors were admitted.

It is contended on appeal that the evidence is insufficient to support the verdict.

The offense is alleged to have occurred in Altadena, the attempted burglary of a drug store.

As recited in respondent's brief, 'Keith L. Morse, employed as a pharmacist by the McIntyre Mariposa Pharmacy, closed the store Friday, April 15, 1955, at about 9:30 p. m. and locked all doors and windows and set the burglar alarm. On returning the next morning shortly past 8:00 a. m., he noticed that the screen door latch had been pulled completely out the screen door and the hook was missing.

'Alexander R. McIntyre, operator of the McIntyre Pharmacy, left about 8:00 p. m. on April 15. He lived right across the street. At 1:00 a. m. the following morning he returned because he heard about four shots, commotion, and automobiles going up and down the street. He went over to the alley behind the pharmacy and 'saw a sheriff's car going around with flashlights'. The deputy sheriffs called his attention to the screen door that had been pulled out. He noted fresh splinters hanging on the threads of the eye of the latch. He saw the hook itself.'

John Davis, a deputy sheriff, testified, as recited in respondent's brief, that 'When he first saw Wilkins on the night of the 15th, the latter was driving a car south on Lake Street within a block of the pharmacy with at least 3 persons in it including Wilkins. Davis and his partner, Sgt. Peterson, were parked on Lake Street in Davis' own car. They observed the car approach them from the rear on Lake Street going south, turn east, at which time they started and followed it as it turned north two blocks later. At this time Davis and Peterson turned around and went back up the street, and made a circle of the town and parked on Mariposa, between Lake and El Molino Streets. Shortly thereafter the same 1950 Cadillac, which he had observed Wilkins driving, pulled away from the intersection of Lake and Mariposa. A man walked around the corner and up to the front door of the McIntyre Pharmacy, cupped his eyes in his hands, and peered through the glass into the store. Then he walked down the face of the store to the other door, stopped, hesitated, and kept on walking past them. As he approached the intersection, the same Cadillac pulled up beside him and he got in. Davis couldn't identify this individual and he was referred to as 'John Doe'.

'They started following the Cadillac again, when it parked. Shortly thereafter it moved and they lost it, but saw it again in the same area. They parked their car and took their equipment, including a walkie-talkie radio, and lights, and went through the backyards of a couple of buildings in the block which is north of the location where the pharmacy is located, and came out in the alley behind the McIntyre Drug Store. There was a slight hill across the alley from the pharmacy and a large incinerator nearby. Davis walked down the alley and, on checking both of the back doors of the pharmacy, including the screen door, found them locked and secure. There was some activity in a bakery down the alley.

'He and his partner were stated on the hill across from the pharmacy after they had explored the surrounding locality when Davis saw the same Cadillac. Davis and his partner parked in the area above the alley. They heard two car doors open and two close, an engine stop, and what sounded like a trunk lid open and close, then some mumbling and scuffling of feet leaving the car, heading toward the rear of the pharmacy. From where they were, they could not observe anyone in the alley. Later Davis heard what he believed to be a door 'pop', as though someone had jerked...