People v. Jackson

Appellant Horton, who was represented by counsel throughout the trial and motion for new trial, appeared originally in propria persona upon this appeal, presenting a brief which is built upon the assumption that he is entitled to a reweighing of the evidence by this court and that it should recognize as pertinent asserted facts which find no reflection in the transcript; a further assumption is that appellant’s own evidence and inferences favorable to innocence should be accepted in preference to the proof showing guilt. In this appellant is fundamentally mistaken.

Upon appeal all evidence and all inferences tending to support the finding of guilt are to be accepted as true and the sufficiency of the evidence tested upon that assumption; the question of reasonable doubt is for the trial court, not the appellate tribunal. (People v. Newland, 15 Cal.2d 678 , 681 [ 104 P.2d 778 ]; People v. Poindexter, 51 Cal.2d 142 , 148 [ 330 P.2d 763 ].) Thus viewed the evidence leaves no doubt about the necessity of affirmance.

The charge upon which appellant was convicted was burglary (Pen. Code, § 459) committed by him, Danny Hool and Willie Jackson, through entry into the residence of Andrew Coleman with intent to commit theft. Convicted of burglary in the first degree the crime was reduced to second degree upon request of the prosecutor. Appellant Horton was also charged with prior felonies, namely, burglary in Texas in 1939 and robbery in California in 1946; the court made no finding thereon. Defendant was sentenced for the term prescribed by law.

On the morning of December 12, 1957, the front doorbell of the residence of Andrew Coleman, at 200 West 54th Street, in the City of Los Angeles, rang three times. Mr. Coleman, 86 years of age, was alone in the house and not fully dressed. He went to the door, looked through the Venetian blinds and saw no one. Turning to go back to the bedroom he was confronted by defendant Hool who waved a gun (or what appeared to be one) at him and said, “Give up.” “Don’t say a G~ d— word.” Coleman said, “Who is you? Why you come in?” and drew his cane back. Hool then turned toward the

Mrs. Mary Edwards, the daughter of Coleman, lived with him but was absent on the morning of the 12th of December. •Upon her return she saw her injured father and made an examination to see if her money, some $54 to $60, was gone.

Horton’s story as given to the police officers and repeated on the witness stand was that he was with one Apple-berry at a certain coffee shop when Hool and Jackson drove up and asked him to go with them to help unstop a sink, which they had been trying to do all morning without success. He agreed to do so. They drove in Jackson’s Mercury to 54th Street between Main and Broadway, parked and walked between houses to the rear of the Coleman home. A dog was barking. Hool and Jackson entered the enclosed porch of the Coleman home, told Horton to wait outside, which he did. Soon he heard “Oh! Oh!”; Hool ran out the back door, grabbed him, said “Let’s get out of here.” Appellant ran for the Mercury automobile but it was gone. He was stopped by two men who took him into custody. He says that he at no time entered the Coleman house or porch. In effect he said he had no intent to commit theft there and did not know that Hool and Jackson had that in mind. Appellant’s brief assumes that the court can and should accept his testimony in preference to that of the prosecution witnesses. The trial judge rejected most of it and that fact ends the inquiry into credibility of witnesses. Moreover, appellant’s testimony was impeached by his admission that he had been convicted of burglary in 1939 and robbery in 1946. There is no merit whatever in appellant’s claim that the evidence should be resolved in his favor in this court.

Appellant’s other point on appeal is that he did not waive a jury in the manner required by section 7 of article I of the Constitution, i.e., “by the consent of both parties, expressed in open court by the defendant and his counsel, ...” The transcript shows the contrary.’ Appellant, Hool and Jackson were tried jointly. At the beginning of the trial respective counsel made motions for trial without a jury: “Mr. Martin: May the Court please, on behalf of the defendant Danny Hool, we wish to waive our right to a trial by jury and try the matter before the Court. Mr. Wilson: The same motion will be presented on behalf of the defendant Jackson and the defendant Horton.” Jackson then formally waived a jury in person and through counsel. Hool did the same thing. Appel

This claim of nonwaiver of a jury is incorporated in a document entitled “Motion for Mandate of Dismissal” which was served with appellant’s opening brief and is physically attached thereto. It concludes with the following: ‘ ‘ The defendant moves that the Honorable Court vacate and set aside the verdict and sentence against this defendant on the above grounds.” Manifestly, the motion does not lie.

Through counsel recently appointed by the court appellant has filed a supplemental brief urging error in denial of his motion for new trial. Though it is said that the trial judge at that point discounted the testimony of the victim, who had positively identified appellant as one of those who assaulted him in his house, and mistakenly concluded that he could not grant a new trial, we do not find this to be a correct interpretation of the record. This is also true of the claim that the judge expressed and followed a mistaken view of the law as to aiders and abettors. There was no error in the denial of a new trial.

Motion dismissed. Judgment and order denying new trial affirmed.

Pox, P. J., and Herndon, J., concurred.