People v. Clements

PULLEN, P. J.

Defendant was charged with the crime of burglary and was found guilty by a jury of burglary in the first degree. This appeal is from the judgment of conviction based thereon.

Appellant as grounds for reversal claims the court erred in admission of certain evidence, particularly in regard to an alleged confession by appellant, and also that the evidence is insufficient to support a verdict of burglary of the first degree.

As to the first point urged we can find no error of sufficient gravity to justify a reversal. Appellant, with a man named Beedo and two other men, lived in what he termed a shack in the jungles in the outskirts of Sacramento. A police officer testified that in a list of articles taken from certain burglarized premises was a candy container and a toaster which were later found in the shack occupied by appellant. The officer also testified he talked to Beedo, who told him appellant brought the articles to the shack. Upon objection by appellant this testimony was stricken out. The officer then stated Beedo was taken to the cell of appellant in the city jail, where he there said to appellant: “Red”, referring to appellant, “you pulled that burglary job, why don’t you tell the truth?” Following this incident, so the officer testified, appellant freely and voluntarily admitted he burglarized the house as charged in the information.

Appellant claims he was not given an opportunity to show the confession was not free and voluntary, but the record discloses appellant had ample opportunity and called a witness in addition to his own testimony in an attempt to discredit the same.

The trial court is vested with a discretion to determine whether or not a confession is admissible, and if there is a

[584]

conflict in the evidence as to whether this testimony was or was not free and voluntary, the finding of the trial court will not be disturbed.

(People

v.

Lehew,

209 Cal. 336 [287 Pac. 337];

People