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District Court of Appeal, Fourth District, California.


Cr. 179.

Decided: February 15, 1935

J. M. Lopes, of Visalia, for appellant. U. S. Webb, Atty. Gen., and Eugene M. Elson, Deputy Atty. Gen., for the People.

Defendant was convicted of the crime of petit theft. He was charged with and admitted having suffered two prior convictions of petit theft and having served terms therefor in penal institutions.

He urges four grounds for a reversal of the judgment against him: (1) That the evidence is insufficient to support the judgment; (2) that the trial court erred in refusing his request for an instructed verdict; (3) errors in ruling on the admissibility of evidence; (4) errors in instructions to the jury.

The evidence amply supports the judgment. It may be summarized as follows: Safeway Store No. 2 is located on Main street in the city of Visalia. On the morning of August 7, 1934, defendant and a companion entered the store and one of them obtained a drink of water. Some time before noon on this same day the manager filled the shelves of a case near the front of the store with cartons of cigarettes. About 1 o'clock in the afternoon defendant was found with two cartons of Chesterfield cigarettes concealed beneath the bib of his overalls. The cartons bore the serial number E-21-4. Two cartons were missing from the case in Safeway Store No. 2. No cigarettes had been sold from the case after it was filled and before the arrest of defendant. All cartons of cigarettes in a package of fifty bear the same serial number. Cartons of Chesterfield cigarettes in the case bore the serial number E-21-4. Defendant and a companion had been at Safeway Store No. 2 about half an hour before the arrest. He told the chief of police of Visalia that he obtained the cigarettes at this store.

We have examined the record with the other specifications of error in mind and find no merit in any of them.

Judgment affirmed.

MARKS, Justice.

We concur: BARNARD, P. J.; JENNINGS, J.

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