People v. Soldavini

NOURSE, P. J.

The defendant was tried before a jury upon an information charging burglary of an oil service station located at 200 Carl Street in San Francisco. From the judgment following a verdict of guilty and from the order denying a new trial he brings this appeal.

The oil station was entered and valuable property taken therefrom during the night of June 7th, or early in the morning of the 8th. At about 5 :54 a. m. of the 8th defendant was seen near the corner of 10th Avenue and Quintara Street where he stopped an old automobile which he was driving and endeavored to destroy a cash tray which had been taken from the oil station, and also endeavored to break open a telephone pay box which was taken from the same place. A little later he was observed by another witness near 22nd Avenue and Balboa driving the same automobile, which he abandoned at that corner because the left front wheel was broken. This witness got into his own car and drove around several blocks until he again saw the defendant running into a tradesmen’s entrance. A little later he saw him back out of a garage in another car. The witness gave chase, but the defendant abandoned the second car and started

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running, when a police officer gave chase, over several back yard fences until both defendant and the officer were near exhaustion. The defendant was taken into custody and gave an assumed name. His excuse for the flight and for the false name was that he was on parole and did not want the officer to know it.

The first point raised on the appeal is that the evidence is insufficient to prove identity. The witnesses all testified that they observed a man in a dark blue suit and a light hat. One witness testified that he thought the man he had seen was heavier than the defendant, but that, to the best of his knowledge, the defendant was the same man that he had seen get out of the automobile in the morning of June 8th. “In order to sustain a conviction it is not necessary that the identification of the defendant as the perpetrator of the crime be made positively or in a manner free from inconsistencies. It is the function of the jury to pass upon the strength or weakness of the identification and the uncertainties of the witnesses in giving their testimony. ’ ’

(People