People v. Martinez

JENNINGS, J.

The defendants, Albert Martinez, Raymond Garcia and Julian Jacques were jointly accused by information of having committed the crime of burglary. Each defendant, on arraignment, entered a plea of not guilty and they were thereafter jointly tried before a jury, which returned a verdict finding each defendant guilty of the crime of second degree burglary. At the time appointed for pronouncement of judgment a motion for a new trial was presented on behalf of each defendant, which motion was by the court denied and judgment was thereupon pronounced whereby it was adjudged that the defendant Martinez should be confined in Folsom prison and the two other defendants should be confined in the county jail for a period of ten months. From the judgment thus rendered and from the order denying the motion for a new trial the defendant Albert Martinez alone presents this appeal. The notice of appeal states that the defendant also appeals from the verdict of conviction. Inasmuch as no appeal lies from the verdict of a jury the attempted appeal therefrom is dismissed.

The sole contention advanced by appellant on this appeal is that the judgment of conviction lacks evidentiary support.

[601]

The foundation for this contention rests in the argument that the only evidence which implicated appellant in the commission of the offense of which he was convicted consists of extrajudicial statements of his eodefendants Jacques and Garcia, who were admittedly his accomplices. Proper consideration of the contention thus advanced necessitates an examination of the evidence which was presented during the trial.

The reporter’s transcript on appeal discloses that evidence was produced which tended to establish the following facts: At some time between 9:15 P. M. of October 9, 1936, and 5 o’clock A. M. of October 10, 1936, the front window of a drug and liquor store in the city of Redlands was broken and a number of bottles of whiskey were taken from the display platform back of the window. This fact was discovered about 5 o’clock A. M. of October 10, 1936. At this time it was also observed that there was blood on the window sill and on the sidewalk and on some pieces of broken glass that were found on the sidewalk beneath the window. An article identified as a brake shoe from a Ford automobile was also found near the window. Inspection of this tool disclosed the presence of fragments of shattered glass in its lining and the appearance of a drop or two of blood on its surface. The whiskey which was displayed on the window platform of the store on the night of October 9, 1936, consisted of two brands, viz.: Town Tavern and Windsor. The serial number assigned to the proprietor of the store as a liquor vendor by the board of equalization of the state of California for the latter part of the year 1936 was C2307 and was placed by him or some person in his employment on the state tax stamp which was affixed to each bottle or flask of whiskey offered for sale by him. About noon of October 10, 1936, a peace officer discovered appellant, who was then lying naked on the ground at the side of a road known as Barton Avenue. This road extended along the edge of a grove of eucalyptus trees. Shortly after the discovery of appellant as aforesaid the same officer found a Ford automobile which was in the eucalyptus grove a distance of approximately 50 yards from the spot where appellant was reclining. At the time the automobile was located the defendant Jacques was discovered lying on the ground asleep at the left side of the car. At about the same time that appellant and Jacques were found as