People v. Russo

ASHBURN, J.

Appellant was tried contemporaneously upon one charge of burglary (Pen. Code, §459) and two charges of statutory rape (Pen. Code, §261, subd. 1). Convicted on all counts and committed to the Youth Authority for the terms prescribed by law defendant appeals from the judgments. Counsel attack sufficiency of the evidence in each instance.

The case was presented somewhat casually on both sides. Evidence supporting the convictions is weak, but settled rules of review forbid interference on our part. Upon appeal all evidence and all inferences tending to support the finding of guilt are to be accepted as true and the sufficiency of the evidence tested upon that assumption; the question of reasonable doubt is for the trial court, not the appellate tribunal.

(People

v.

Newland,

15 Cal.2d 678, 681 [104 P.2d 778] ;

People

v.

Poindexter,

51 Cal.2d 142, 148 [33 P.2d 763];

People

v.

Jackson,

167 Cal.App.2d 270, 271 [334 P.2d 114].)

The burglary charge. The evidence shows without dispute that the apartment of Mr. Guy Gambaro at 310 South Bunker Hill Street, Los Angeles, was burglarized between 6 p.m. and 10:45 p.m. on October 8, 1957. An electric clock, a radio, a suit of clothes, a pair of shoes and a Gillette razor

[749]

were stolen. The question now presented is whether defendant was connected with the crime by substantial evidence, direct or circumstantial. Defendant’s possession of the electric clock and radio is admitted. He sold them to Louis Stephan about the middle of October, 1957, for $6.50. Their values are not established by the evidence but they were before the trial judge as exhibits and it is a fair inference that this sale was at a price substantially below their real value; if that were not the case the defense doubtless would have shown the true situation. This sale was made at about 1:30 a.m. to 2:30 a.m. in front of a hotel at Third and Hill Streets, where defendant lived. He had known Stephan for about six months and on this occasion accosted him and offered to make the sale; neither one of them mentioned the source from which defendant got the articles. The clock, radio, etc., were found by the police in Stephan’s apartment on December 9, 1957. After defendant’s arrest, which was on that day, the officers talked with him. He initially denied the charge of burglary and when shown the clock and radio said he had never seen them before. Later on the same day he retracted this denial and said that he had gone to the apartment at 310 South Bunker Hill with Nick Hust and Gerald Zalcowski; he and Nick had forced the door to Apartment 3 and had taken the radio and clock, also a suit of clothes and a pair of shoes; he sold the radio and clock to Louis Stephan for six or seven dollars. At the trial defendant testified that he got the radio and clock from Nick (last name unknown to him), paid him four dollars for them and resold to “this other guy called Lou” for $6.50. Of course the trial judge was entitled to reject the testimony that he bought the articles from Nick while believing and accepting the statement that he sold them to “Lou” for $6.50. (See