People v. Peters

HERNDON, J.

Appellant Me Caw together with defendants Peters and Small was charged with burglary and grand theft in that on or about March 8, 1960, they wilfully entered the J. C. Penney Building in Santa Monica with intent feloniously to commit theft and that they wilfully and unlawfully took therefrom men’s suits of the value of $900. Appellant

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was also charged with three prior burglary convictions. All three defendants pleaded not guilty to each count. Appellant first denied, but in chambers prior to the commencement of the trial, he admitted the prior convictions for which he served prison terms in California.

In the ensuing jury trial, all the defendants were found guilty of burglary in the second degree and of grand theft. Appellant did not take the stand to testify in his own behalf. It is from the judgment of conviction that appellant, then in propria persona, gave the following notice; “Written notice of appeal is hereby given from the order and judgment in the above entitled court rendered April 12, 1960 by Judge Lynch, Department A, Santa Monica. Said appeal is taken upon all motions, judgment and orders therein.” The appellant retained counsel for his appeal and the opening brief indicates only an appeal from the judgment itself. In any event, it is clear that an appeal from the trial court’s denial of the appellant’s motion for a continuance is a nonappealable order (3 Cal.Jur.2d, Appeal and Error, § 51), and we must assume that it is from the judgment alone that appellant McCaw takes this appeal. He alleges error (1) in the extensive cross-examination of his codefendant Small by the court, and (2) in the denial of his motion for a continuance to produce an additional witness.

The factual background surrounding this prosecution is not in dispute with the exception of the identification of defendant Peters and the appellant. On March 8, 1960, at approximately 4 p. m., while working as a stock clerk in the J. C. Penney store in Santa Monica, Henry MeGraw observed a 1953 Oldsmobile facing the wrong way in the alley next to the store. MeGraw testified that defendant Peters was alone in the car behind the wheel. When he reentered the store, MeGraw observed defendant Small and the appellant approximately 3 feet away coming out of the store with Small carrying six or eight men’s suits. MeGraw yelled to the store manager Ken Noble that “somebody is getting some of your suits.” MeGraw then observed Small and the appellant run to and enter the car. The record indicates that witness MeGraw was positive in his identification of the three defendants and, in spite of vigorous cross-examination, remained firm in his testimony.