People v. Parry, Cr. 4588

• Decision Date: 06 July 1951
• Docket Number: Cr. 4588
• Parties: PEOPLE v. PARRY.
• Court: California Court of Appeals Court of Appeals

Page 899

232 P.2d 899

105 Cal.App.2d 319

PEOPLE v. PARRY.

Cr. 4588.

District Court of Appeal, Second District, Division 2, California.

July 6, 1951.

Floyd Augustus Parry, pro se.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

WILSON, Justice.

Defendant was charged by information with four counts of burglary and with prior convictions of rape and robbery. He pleaded not guilty and denied the prior convictions. After trial by the court sitting without a jury he was found guilty on all four counts. The court also found prior convictions as charged. Defendant's motion for new trial and his application for probation were denied and he was sentenced to the state prison. This appeal is from the order denying his motion for new trial and from the judgment.

Defendant contends as grounds for reversal that (1) certain of the witnesses committed perjury and their testimony was conflicting and contradictory and not worthy of belief; (2) the charges against him should have been dismissed at the preliminary hearing for lack of probable cause; (3) the court erred in sustaining objections; (4) the court erred in limiting the argument; (5) the prosecution failed to produce certain evidence allegedly in their possession; (6) the court improperly limited him in the presentation of his evidence; (7) the district attorney was guilty of misconduct; (8) the evidence was insufficient to sustain a conviction.

At the commencement of the trial defendant dismissed his attorney and defended himself. His appeal has been taken in propria persona.

On four different dates television sets were stolen from homes while the owners were absent. Within a few hours of the theft in each instance defendant was seen in an automobile in which there was a television set of the type stolen in each burglary; on three occasions the automobile used was similar to the one owned by defendant in which he was arrested. In three of the instances while defendant remained in the car a man entered a bar owned by one Ross and offered the television sets for sale. Three of the sets were sold respectively to Ross and two of his bartenders and were subsequently recovered by the police. On one of the three dates in question a colored man wearing a hat and sunglasses, whose actions, walk height and build were exactly like those of defendant, was seen near the back door of the house from which a television set had been stolen. The fourth burglary was effected by breaking a window. When the owner returned he found blood on the window curtain and on the sidewalk. On the same day defendant entered Ross' bar and offered to sell a television set of the same make and model as that which had been stolen. At the time defendant had a handkerchief wrapped around his right hand which was bleeding. He stated he had scratched it on some glass in North Hollywood. A police officer saw defendant enter Ross' bar and he saw in defendant's car a television set of the same make as that which had been stolen on the same day.

Defendant was arrested the following day. At that time he had a fresh cut on his thumb which he stated he got the preceding day from a screw driver while he was changing a tire. When asked where he was living he said he had no address but was sleeping in his car. He later took the officers to his address on Second Avenue where they found blood-stained clothes in a shopping bag. Defendant at first denied and then admitted the clothes were his.

At the trial defendant testified he got the cut on his hand in a fight. He denied he had ever been in the Ross bar or that he had a television set in his car on the day it was seen there by the police officer.

There is no merit in any of defendant's contentions.

It is not the function of an appellate court to consider the credibility of witnesses or the weight to be accorded their testimony. People v. Hills, 30 Cal.2d 694, 701, 185 P.2d 11; People v. Ash, 88 Cal.App.2d 819, 825, 199 P.2d 711. The findings of the trial court on the subject of credibility of witnesses and the weight to be given evidence are conclusive upon this court. People v. Stanhope, 37 Cal.App.2d 631, 635, 99 P.2d 1075; People v. Carlisle, 66 Cal.App.2d 874, 876, 153 P.2d 401. Neither variances, inconsistencies nor contradictions in the proof of a crime are of avail on appeal. People v. Boyce, 87 Cal.App.2d 828, 830, 197 P.2d 842.

Defendant cannot now interpose objections as to the sufficiency of the evidence taken at the preliminary hearing nor may he complain that he was committed without probable cause. Such objections can be raised only by a motion to set aside the information and cannot be raised upon appeal where such a motion was not made in the trial court. Ex parte Tedford, 31 Cal.2d 693, 694, 192 P.2d 3; People v. Phillips, 12 Cal.App. 760, 762-763, 108 P. 731; Pen.Code, secs. 995, 996. No such motion was made.

Defendant contends the trial court erred in sustaining objections in certain instances where no objection was made by the district attorney and if objection was made it was incomplete. The questions asked were improper and the court acted within the scope of its duty when it refused to allow them to be answered whether or not objections had been previously made thereto. People v. Yuen, 32 Cal.App.2d 151, 160, 89 P.2d 438, 90 P.2d 291.

Defendant asserts he was...