People v. Ewing

COUGHLIN, J. The defendant, appellant herein, was charged with the offense of burglary, i.e., a violation of Penal Code, section 459, and with five previous felony convictions; admitted the previous convictions; pleaded not guilty to the burglary charge; was tried by a jury therefor; was convicted of burglary in the second degree; moved for a new trial, which was denied; and was sentenced to imprisonment in the state [366]prison. Judgment was pronounced on September 23, 1960; made no determination as to whether the sentence imposed should run concurrently or consecutively with any prior in-completed sentence; and on November 1, 1960, was amended nunc pro tunc so as to provide that the sentence thereby imposed should run consecutively with any previously imposed sentence.

The defendant appeals from the judgment contending that: (1) the evidence is not sufficient to sustain the verdict; (2) the court was biased against him; (3) he received only token representation from his counsel; (4) he was a victim of an unlawful search and seizure; (5) error was committed when the testimony of a witness was not read to the jury as requested; (6) the jury was improperly instructed; and (7) the court erred in amending the original judgment.

Under oft-repeated rules, when the sufficiency of the evidence to sustain a verdict is challenged on appeal, the appellate court determines only whether there is any substantial evidence in the record, either direct or circumstantial, contradicted or uncontradicted, which justifies the conclusion reached (People v. Daugherty, 40 Cal.2d 876, 885 [256 P.2d 911] ; People v. Foster, 195 Cal.App.2d 651, 653 [15 Cal.Rptr. 891]) ; does not determine the credibility of the witnesses or the weight to be given their testimony, unless it is obviously false or inherently improbable (People v. Ashley, 42 Cal.2d 246, 266 [267 P.2d 271] ; People v. Jaquish, 170 Cal.App.2d 376 [338 P.2d 974]) ; and, in the absence of some legal impediment, will assume that 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].) The evidence herein will be stated accordingly.

On Sunday morning, January 31, 1960, at about 8 :45 a. m., the owner of a radio and television business in Montclair drove up to the front of his store, which was closed for business; noticed a movement inside; walked to the corner of the building and observed that the door to the service entrance was ajar; simultaneously saw the defendant come out of this entrance with his hands wrapped in strips of white cloth, and called to hfm to stop. The defendant fled toward an open field. The owner returned to his ear; drove in search of the defendant; located him walking along an adjoining street, and followed him. When the owner came near the defendant,