People v. Atkins

VAN DYKE, P. J. The appeal herein is from the judgment and order denying motion for new trial following a jury verdict finding appellant guilty of the crime of burglary of the first degree.

Appellant contends that the evidence was insufficient to support the verdict, that the trial court committed prejudicial error in the admission of evidence, in the giving of certain instructions, and in refusing appellant’s counsel the right of preliminary cross-examination before admitting evidence of prior identification. Appellant also contends that the district attorney was guilty of prejudicial misconduct. Before discussing these contentions we will summarize the evidence upon which the prosecution relies.

This we will do in line with the well-settled rule that questions pertaining to the weight of evidence and the credibility of witnesses are matters which rest entirely with the jury and that before a challenge to the sufficiency of the evidence can be upheld it must appear that on no reasonable hypothesis is there sufficient evidence to support the conclusion reached in the trial court. (People v. Hills, 30 Cal.2d [735694] [185 P.2d 11]; People, v. Newland, 15 Cal.2d 678 [104 P.2d 778].) There was testimony that at about 8:45 p. m. on September 19, 1956, the front doorbell of a Mrs. Siegfried was rung. She resides with her husband and son in a two-story house located at the intersection of Walnut and Lee Streets in the City of Lodi. She was in an upstairs bedroom and had been in bed for about 30 minutes when she heard the ring. Due to her ill health she disregarded the bell, but within a few minutes heard the rear door buzzer sound. She then arose and went to the window and looked out. The lights in the house were out and the doors were unlocked ; it was a bright moonlight night and the area of Walnut and Lee Streets was lighted by two street lamps. There were no screens on the windows and no objects that would obstruct the view from Mrs. Siegfried’s bedroom window to the ground at the rear of the house. As Mrs. Siegfried watched, she saw a man, whom she later identified as appellant, coming from the back of the house carrying a brown object over one arm and holding several objects in his hands. She saw the man take a few steps, then stop and throw a white object, and another article that made a thud when it landed, under an orange tree in the yard. She then saw the man proceed down Lee Street towards Oak Street. After the man left she searched under the orange tree and found a white purse belonging to her, and a jug or vase that had been on her dining room table. Returning to the house she discovered that there was missing a black patent leather purse which had contained a $20 bill, a $10 bill, and a $5.00 bill. She also discovered that her husband’s suit coat, which had been hanging on a dining room chair, was gone. She called her husband at his music store in town, and informed him and their son of the burglary. She gave them a description of the burglar as a man of slight build, with a thin face, dark, “slick” hair, who was wearing suntanned trousers and a dark green jacket. Mr. Siegfried notified the police and gave them his wife’s description of the burglar. He and his son then drove down Oak Streets towards Lee Street. They encountered a man they identified as appellant as he was crossing an intersecting street. They parked their vehicle and watched him cross the street. As he went, he was counting some green objects in his hands which they described as looking like greenbacks. They followed this man along Oak Street to the Rex Pool Hall which he entered about 9:10 p. m. They then went to the police station, where they reported appellant’s where