People v. Foster

COUGHLIN, J.

The defendant was charged with, tried by a jury for, and convicted of the offense of burglary, i.e., a violation of section 459 of the Penal Code; was sentenced to imprisonment in the state prison; and appeals from the judgment.

As a general rule, on appeal it is assumed that, in the absence of some legal impediment, the jury accepted that evidence which supports their verdict and rejected that evidence which would support a contrary verdict.

(Thomas

v.

Hunt Mfg. Corp.,

42 Cal.2d 734, 736 [269 P.2d 12];

People

v.

Newland,

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

Glassell

v.

Prentiss,

175 Cal.App.2d 599, 604 [346 P.2d 895];

People

v.

Jackson,

152 Cal.App.2d 397, 401 [313 P.2d 931];

Wolfson

v.

Beatty,

118 Cal.App.2d 392, 398 [257 P.2d 1017].) The facts in this ease will be stated in accord with this rule.

On the night of September 25, 1960, Monte’s Market, in San Diego, was burglarized; entry had been made through a hole cut in the roof; filing cabinets had been rifled; and small change, consisting of pennies, nickels, dimes and quarters, in a sum less than $5.00, had been taken from the money order drawer. On the morning after the burglary, the defendant’s wallet was found on the floor under the hole which had been cut in the roof. He was taken into custody forthwith, and shortly thereafter his shoes, sox, shirt and trousers were removed and delivered to the police department’s laboratory for examination. Samples of roofing material taken from the roof at the place where the hole had been cut, and of debris removed from the floor under this hole also were delivered to the police laboratory. A microscopic examination revealed the presence of a tar substance, red brick particles, and a