People v. Foster

• Decision Date: 15 September 1961
• Docket Number: Cr. 1480
• Citation: 195 Cal.App.2d 651,15 Cal.Rptr. 891
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Arthur FOSTER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 891

15 Cal.Rptr. 891

195 Cal.App.2d 651

PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Arthur FOSTER, Defendant and Appellant.

Cr. 1480.

District Court of Appeal, Fourth District, California.

Sept. 15, 1961.

Paul Arthur Foster, in pro. per.

Stanley Mosk, Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for respondent.

COUGHLIN, Justice.

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 case 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, nickles, dimes and quarters, in a sum less than $5, 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 white plaster composition on the defendant's shoes and sox and in his trouser cuffs and pockets which were identical with a tar substance, red brick particles and white plaster composition that were part of the samples of roof material and debris from the floor taken from the market after the burglary. Following his arrest, the defendant's automobile was searched. In the truck thereof the officers found two tools, one of which was a tire iron. Gouged indentations on the market door and an end of the tire iron fitted perfectly. An examination of the hole in the roof disclosed that the wood and tar paper at that point had been pried open with a metal object, and a microscopic examination of the grooves in the tip of the tire iron showed a tar substance thereon. In searching the defendant's automobile, the police officers looked in the glove compartment and found 28 or 29 dimes, 2 nickles and 9 pennies. At the time he was taken into custody the defendant had in his possession 1 quarter, 5 dimes and 2 nickles. When questioned about the money in the glove compartment the defendant stated that he was accustomed to putting small change in there and when it amounted to $5.00 or so he gave it to a Mrs. Player to put in a 'piggy bank.' Mrs. Player testified that she had received no money from the defendant for a 'piggy bank.'

In considering the sufficiency of the evidence to support a verdict, 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. Kessler, 62 Cal.App.2d 817, 821, 145 P.2d 656. The evidence in this case, as heretofore outlined, is legally sufficient to sustain the finding of the jury that a burglary had been committed and that the defendant was the person who had perpetrated the offense.

The defendant contends that the witnesses who testified against him lied, and for this reason the judgment should be set aside. It is a fundamental rule that the credibility of witnesses who testify at a trial is a matter solely for determination by the trier of fact (People v. Ashley, 42 Cal.2d 246, 266, 267 P.2d 271; People v. Mickalian, 114 Cal.App.2d 11, 13, 249 P.2d 358), and the acceptance of or weight to be given their testimony is not subject to review unless it is obviously false or inherently improbable. Bennett v. Chandler, 52 Cal.App.2d 255, 261, 126 P.2d 173; People v. Santora, 51 Cal.App.2d 707, 711, 125 P.2d 606. The testimony in the case at bar is...