212 Cal. App. 2d 410 | Cal. Ct. App. | 1963
Appellant was convicted of petty theft with a prior felony conviction, to wit: burglary, in violation of section 667 of the Penal Code. He has appealed from the judgment.
In seeking a reversal he makes two contentions: (1) the evidence is insufficient to establish his guilt of petty theft; and (2) the evidence is insufficient to show that he had suffered a prior felony conviction.
On January 9, 1962, appellant and his codefendant, Ferguson,
Dunn and Miss Duffy followed defendants out of the door. One of the defendants turned around and observed Dunn and Miss Duffy. At that point Ferguson put the TV on the ground and both defendants ran. Dunn ran after appellant who was chased across the street by another employee who caught him. Appellant was brought back to the store. Ferguson was apprehended by Miss Duffy and another employee. The TV set was brought back into the store, at which time it was determined that its sale price was $168.88.
Penal Code section 31 provides: “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed.” It is apparent from the evidence herein that if appellant’s conviction is to be sustained it must be upon the theory that he aided and abetted Ferguson in stealing the TV set. In this connection it must be borne in mind that before a judgment of conviction will be reversed for insufficiency of the evidence, it must be made clearly to appear that on no hypothesis whatever is there sufficient substantial evidence to support the trial court’s conclusion. (People v. Frankfort, 114 Cal.App.2d 680, 689 [251 P.2d 401].) Also, we must assume in support of the judgment the existence of every fact that the trial court could have reasonably deduced from the evidence, and then determine whether the facts “justify the inference of guilt.” (People v. Deysher, 2 Cal.2d 141, 149 [40 P.2d 259].)
Appellant asserts that the only evidence against him is flight. He overlooks the circumstances and his relation to Ferguson prior to and at the time of the theft of the television set. It will be recalled that he and Ferguson were first observed together in the men’s suit department. They were seen going to several -of the departments in the store together. They consulted with each other just prior to going to the TV
In arguing that the evidence is insufficient to establish appellant’s prior conviction he evidently erroneously interprets the record. Officer Barnaby testified that he observed appellant’s fingerprints being placed upon the card which was introduced in evidence as People’s Exhibit 2. This set of fingerprints was compared by a fingerprint expert with a set of fingerprints (Exhibit 3) attached to the certified record of a prior conviction of one Warren Wesley Lodge. The opinion of the expert was that the two sets of
Herndon, J., concurred.
Ferguson entered a plea of guilty, hence is not involved in this appeal.