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District Court of Appeal, First District, Division 1, California.


Cr. 1966.

Decided: July 09, 1937

Bruce P. Griswold, of San Jose, for appellant. U. S. Webb, Atty. Gen., and Seibert L. Sefton, Deputy Atty. Gen., for the People.

Appellant was charged with burglary and convicted. He appeals from the judgment and from an order denying his motion for a new trial.

The evidence shows that a service station operator was induced by false statements as to its condition to enter a rest room at the station. The door was then locked and the operator confined therein. The person who made the statements then opened the cash register in the station office and took a sum of money therefrom. Appellant was subsequently arrested and identified by the operator, and the identification was repeated at the trial.

Appellant contends that this testimony, when considered with that adduced on the cross–examination of the operator, was insufficient to support the verdict.

It appears that the operator met the burglar face to face; and although in some particulars, namely, in the description of his apparel and hair, the testimony might have created a doubt in the minds of the jurors as to accuracy of the identification, nevertheless enough was shown to sustain their conclusion as expressed in the verdict. While inconsistencies in the testimony of a witness tend to impair his credibility, it still remains for the jury to determine its weight. 10 Cal.Jur.Evidence, § 364, p. 1146. Here the identification was positive, and the evidence sustains the conviction. People v. Wallach, 79 Cal.App. 605, 250 P. 578; People v. Radz, 119 Cal.App. 435, 6 P.(2d) 527; People v. Villaruz, 16 Cal.App.(2d) 492, 60 P. (2d) 886.

The judgment and order are affirmed.


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