People v. Darnel

THOMPSON (GORDON), J.,

pro tem.

The defendants were convicted by a jury of eight counts of burglary in the second degree and have appealed from the judgments and from the orders denying their motions for a new trial.

A general store, known as the Tatum General Store, in the town of Nuevo, Riverside County, was entered on the 19th day of November, 1937. The cash register was opened, with about $25 in small change missing. In addition to the cash, there were about 18 cartons of cigarettes missing.

On December 5, 1937, the Greyhound Service Station in Perris, Riverside County, was burglarized and about $6 or $8 in small change taken. There were also a screw-driver and a pair of pliers missing.

The Texaco Service Station in Perris, Riverside County, was entered on December 12, 1937, and approximately $2 in change and five cartons of cigarettes were missing.

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December 18, 1937, Small’s Grocery Store in Perris, was entered and approximately $5 was removed from the cash register. Cigarettes and groceries were also found missing.

An establishment known as the Sandwich Shack, in Perris, was entered on December 18, 1937. A cigarette machine had been broken open and some cigarettes removed. There were also ice cream and milk missing.

Burnham’s Grocery Store, in the town of Murrieta, was burglarized on December 27, 1937, and approximately $16 in small change was taken. There was also a considerable amount of dry goods, consisting of hosiery, shoes and overalls, which had disappeared. Some watches were also taken at the same time.

On January 11, 1938, Wilson’s Grocery Store, situated in the town of Moreno, was burglarized and the cash register containing $25 in small change was missing.

Appellants urge all of the statutory grounds for a reversal of their convictions, but particularly urge that the verdicts are contrary to the evidence. It is contended by appellant Shaw that the testimony given on each of the several counts does not prove other than mere suspicion and that it would have been impossible for him to have committed or aided in the commission of the offenses charged, in that he was in the state of Texas at the time the Tatum General Store was burglarized. Appellant Shaw introduced testimony to prove that he did not leave Texas until November 23, 1937, four days after the Tatum burglary. The witness so testifying was appellant Shaw’s stepfather. He testified that he lived in a tourist camp at Odessa, Texas; that Bill Shaw came there about November 5th or 6th, and stayed with him until November 23d, and that he himself remained there until January 2, 1938, when he came to California. He was positive that Shaw had remained in Odessa, Texas, until November 23, 1937, although on cross-examination he testified that he, the witness, left the tourist camp at Odessa, Texas, on November 21, 1937, and went to Hobbs, New Mexico. It would seem from this testimony that he was in no position to know when Shaw left Texas. The jury apparently discounted his testimony. The People, however, introduced testimony that the appellants were seen together at a vineyard about five miles from Perris, during