People v. Burton

SHINN, P. J.

— Upon information charging burglary, Adolph Levere Burton and Clifford Jones were convicted, in a trial to the court, of attempted burglary. Burton’s motion for new trial was denied and he was sentenced to state prison. His notice of appeal, filed in propria persona, will be deemed an appeal from the order as well as from the judgment.

Upon Burton’s application for appointment of counsel on the appeal, the matter was referred to the Los Angeles County Bar Association Committee on Criminal Appeals. A comprehensive review of the record and a report has been received from a member of the committee. Having considered the report and, in accordance with our practice, having read the record, we denied the application for reasons that will hereafter appear. After notification under rules 30 and 17a, Rules on Appeal, defendant has filed a brief claiming insufficiency of the evidence.

There was evidence of the following facts. At about 3 a. m., Officer Schneider, patrolling an alley in the rear of the liquor store of one Sakiyama in Los Angeles, heard the sound of metal striking against stone; he saw two men running into a space between two stores; he called to his partner, Officer Harer, who was in front of the liquor store and ran after the two men, who had just emerged from between the two buildings. The officers called out their identification and demanded that the men stop; Burton stopped but Jones continued on until he was shot and wounded. The two men were taken into custody. Although Officer Schneider did not see the faces of the men before they disappeared between the buildings, Officer Harer saw them emerge and did not lose sight of them until they had been taken into custody. Between 2 a. m., when the store was locked up by the proprietor, and the apprehension of the defendants, a hole had been made in the stucco wall of the building. Samples of stucco taken from the ground at that point were compared with samples of stucco taken from the cuffs of Jones’ trousers and they were found to be identical.

Burton testified that he was in a telephone booth at the corner of an alley near the liquor store; he was about to make a telephone call to some unidentified person; he saw a man running; questioned by an officer he indicated the direction

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