This is an appeal by defendant from a judgment of conviction pursuant to a jury verdict finding him guilty of the crime of burglary in the first degree. Defendant’s notice of appeal was filed in propria persona; however, he is now represented by counsel appointed by this court. Originally the information charged defendant and one Rolando Abad jointly with the crime of burglary. The information also charged defendant with two prior convictions of burglary, which he admitted. Thereafter, on motion of the prosecution, the information as to Abad was dismissed and the trial proceeded against Webster alone. At the conclusion of the first trial, the jury, being deadlocked, was dismissed. Upon the second trial the jury returned a verdict of guilty and this appeal followed.
The sole ground now urged by defendant is that the evidence is insufficient to support the verdict. The record shows that while Mr. and Mrs. Perkins were entertaining their neighbors, Mr. and Mrs. Severson, muffled footsteps were heard in the kitchen. Mrs. Perkins went to investigate. There she saw a dark, slick-haired man, approximately 5 feet 8 inches in height, standing with his back towards her. He was wearing a dark jacket and light trousers. She screamed and the man fell to the floor. When she and the others returned to the kitchen, the man had fled. Mr. Perkins and Mr. Severson then went outside to investigate, and observed a man walking along the opposite side of the street from the Perkins residence. As they approached him Mrs. Perkins called out that he was the same man she had seen in the kitchen, and they commanded him to stop. The suspect immediately turned and fled, and neither Perkins nor Severson was able to apprehend him. At approximately this same time a car was noticed parked directly. across the street from the Perkins residence. An unidentified man was seen to get into the car, and when commanded to stop, drove away at high speed. Undersheriff Rippey of Sacramento County, another neighbor who had been aroused, fired three shots at the fleeing automobile, and still another neighbor obtained the license number of the car. Upon returning to their home,
The rule governing the province of reviewing courts when on appeal the evidence, circumstantial or otherwise, is attacked as being insufficient, is too well established to warrant, citation of authority. It is only when it has been made " clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below” that a court is warranted in setting aside the verdict of the jury. (People v. Newland, 15 Cal.2d 678 [104 P.2d 778].)
Although the evidence disclosed by the record herein is circumstantial in that no witness testified he could positively identify defendant as the man who was seen at or near the scene of the burglary, we cannot say that there is not sufficient evidence to support the verdict of the jury. The record shows
The judgment is affirmed.
Van Dyke, P. J., and Schottky, J., concurred.