People v. Weathers

PEEK, J.

Defendant appearing in his own behalf has appealed from the judgment sentencing him to imprisonment for the term prescribed by law, which was entered following the verdict of a jury finding him guilty of burglary in the second degree. While the notice of appeal states that the appeal is from the order denying appellant’s motion for a new trial as well as from the judgment, the record does not disclose that a motion for a new trial was made or denied, and therefore the appeal from such purported order must be dismissed.

In seeking a reversal of his conviction defendant raises numerous arguments; however, it appears that his attack upon the judgment is predicated essentially upon the alleged insufficiency of the evidence generally.

The record shows that at approximately 6 o’clock a. m. on February 28, 1949, Governor C. Joe, a bartender at the New Bank Café in Sacramento, arrived at said café to commence his daily shift. Upon hearing noises at the rear of the place he looked through a window in the door and observed a person inside the café. In response to his telephone call

[823]

Officers Alexander and Bryam arrived within a few minutes. Both of the officers testified that the man they saw inside of the café was the defendant and that they observed him “working” on a juke box with a pinch bar. While Officer Bryam went to the rear of the café through an adjoining shoeshine shop Officer Alexander and the bartender entered the front of the café. As they did so, the appellant ran to the rear. He was apprehended by Officer Alexander when his leg became caught in a hole in a partition of the building through which he was attempting to escape into the adjoining shoeshine shop. In the meantime Officer Bryam apprehended the defendant’s accomplice in the rear adjoining storeroom where he had been hiding. Appellant was then permitted to proceed through the hole in the partition into the shoeshine shop where Officer Bryam was holding the accomplice. Keeping his prisoners covered with his gun, Bryam backed out of the room. Just as they reached the doorway defendant knocked the officer off balance by pushing his companion against him. Defendant then broke and ran, and while the police officer fired several shots he effected his escape. He was apprehended several months later in Oakland.