State v. Kinsey
| Decision Date | 23 January 1931 |
| Docket Number | 5092 |
| Citation | 77 Utah 348,295 P. 247 |
| Court | Utah Supreme Court |
| Parties | STATE v. KINSEY et al |
Appeal from District Court, Second District, Weber County; Geo. S Barker, Judge.
Roy Kinsey and another were convicted of burglary, and they appeal.
REVERSED AND REMANDED.
L. A Wade, of Ogden, for appellants.
Geo. P Parker, Attorney General, and L. A. Miner, Deputy Attorney General, for the State.
The defendants were convicted of the crime of burglary, entering a garage in Ogden City with the intent to commit larceny, and appeal. The state claimed that the defendants entered the garage on the night of June 15, 1930, and took therefrom an oxygen tank, a hose-cutting gauge, and a pair of acetylene welding goggles. The state gave evidence to show that some one at the time stated entered the garage by prying loose and removing a window, and took the articles from the garage. The defendants contend that the evidence was not sufficient to connect them with the commission of the offense.
A witness for the state testified that between 1:15 and 1:30 a. m. on the morning of June 16th as he and the manager of a theater in Ogden City (many blocks from the garage and in a different part of the town) were coming out of the theater after it had closed, he saw a Dodge automobile with disc wheels and a California license parked in front of the theater; that he saw a man standing in the outside lobby of the theater who seemed to observe the door and to examine the lock, whom the witness identified as one of the defendants, and saw another man in the car and another in the rear of the car approaching the manager's car "and fumbling with the gasoline tank," whom he was unable to identify, nor did he state that the other defendant was one of them; that the three men got in the Dodge car and drove away; that later he and the manager returned to the theater, and, on entering it, found a man hidden behind the pipe organ with his shoes off and in his hands, and a revolver in his coat pocket, and that he was arrested and taken to the police station. It was not claimed that he was either of the defendants or shown to have been in any way connected or associated with either, or was an acquaintance of either, or that the defendants had ever met or had seen him or had any knowledge that he was in or about the theater.
The state gave evidence that the garage was entered between 10 and 11 o'clock--not later than 11 o'clock--on the night of June 15th. The police at Ogden were not notified and had no knowledge of the commission of the burglary until about 8 o'clock the next morning. However, a police officer testified that about 2 o'clock on the morning of June 16th he saw the defendants driving in an automobile on a principal street of Ogden, and that a blanket was spread over the rear seat of the automobile as though covering some object, but the witness did not know what it was; that later, about two hours thereafter, at about 4:20 in the morning, in making his rounds, he found a Dodge car parked in a vacant lot where a number of other cars were parked in the rear of the Venice Hotel or rooming house and in the vicinity of a number of other cheap hotels and rooming houses; that he notified the police station, and that he and another officer, about twenty or thirty minutes thereafter, arrested the defendants, who were asleep in a room in the Venice Hotel or rooming house where they were registered; the car was searched, and in it was found a loaded revolver, and later, and after the car had been taken to the police station, three pairs of goggles were found in two pockets of the car, one pair of snow glasses or goggles and two pairs of welding goggles, one of which was identified by the owner of the garage as a pair of acetylene welding goggles belonging to him and taken from the garage on the night of June 15th. The tank was not in the automobile. It was shown to be too long to lay it on the back seat. It was found about 10 o'clock on the morning of the 16th along the side of the state highway near a canning factory and a considerable distance from Ogden City.
The foregoing, in substance, is the evidence of the state. No evidence was given to show that the defendants or either of them at any time were seen at or in the vicinity of the garage, or that they even had been in Ogden at any time, until the morning of June 16th between 1:15 and 1:30 o'clock, when, as testified to, one of them was seen in front of the theater.
At the close of the state's case, the defendants moved to be discharged for want of sufficient evidence to connect them with the commission of the offense. The motion was overruled. They thereupon gave their testimony. They denied all knowledge of the offense and that they had anything to do with the commission of it. There is not anything in the testimony of either of the defendants which in any particular helps the state to establish its cause. It is unnecessary to refer to their testimony in detail. Both were residents of Los Angeles, Cal. Both were married and had children, their wives and children residing in Los Angeles. One of them and his wife formerly resided in Utah and had relatives in Ogden City. One of them at Los Angeles was an automobile mechanic. The other was an ornamental iron worker. Business and employment not being good in Los Angeles, they in an automobile owned by one of the defendants drove from Los Angeles to Ogden to there seek employment or elsewhere in Utah. They arrived in Ogden, as they testified, about midnight on June 15th. They drove along a street or two in Ogden, and then to the Venice Hotel or rooming house where they registered,...
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