People v. Owens

BARNARD, P. J.

The defendant was charged with grand theft of a diamond ring, in each of two counts, and in three other counts with second degree burglary. His motion for a directed verdict having been denied he rested without presenting evidence or taking the stand. A jury found him guilty on all

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five counts. An application for probation and a motion for a new trial were denied. He was sentenced on all five counts, the sentences on the grand theft charges to run consecutively and the others concurrently, He appeals from the judgment and the order denying a new trial.

It is first contended that the evidence is insufficient to sustain the judgment as to any of the charges. One charge of grand theft and one charge of burglary relate to a diamond ring worth $1,200 taken from a jewelry store in Lindsay on August 12, 1949. A son of the jeweler, who was alone in the store at the time, testified that he saw a man looking at diamonds in the window; that this man came in and asked to see a diamond ring in a “fish tail” mounting; that the man looked at several rings from the showcase; that he went to the window for another whereupon the man said there was nothing in the window he liked; that as he returned from the window this man said “Well, I like that, my wife is in the car down in front of the bank, and I will go down and get her and bring her back to see it”; that the man then hurriedly left; that there were several other rings on the counter at the time; and that he later discovered that this ring was gone.

The evidence clearly discloses that later that same day the appellant sold the missing ring to one Coleman for $450. When he was arrested two months later the appellant told the officers that he had never heard of a man named Davis, and denied that he had been involved in any ring transaction with either Davis or Coleman. Later, he admitted to them that he had sold a ring to Coleman for $450 but claimed that he did this for Davis who had promised him $50 for making the sale. While the clerk in this jewelry store believed that the appellant was the man who had thus looked at rings, he was unable to positively identify him. The other evidence removes any reasonable doubt, which might otherwise appear, in this connection. The evidence supports the judgment as to these counts.