People v. Davis ( 1948 )

DORAN, J.

The appeals herein involve two actions. In one the defendant pleaded guilty to the information alleging the offense of burglary. In the other the defendant was charged in two counts with “grand theft from the person” and, following a trial by the court was adjudged guilty as charged.

Following the plea of guilty to burglary a request to file an application for probation was granted; such permission was also granted after defendant’s conviction in the grand theft action. Time for the hearing thereon and the pronounceing of judgment was set for May 25 as to both cases. On said date a motion to substitute attorneys for defendant was granted and a motion to withdraw the plea of guilty to the burglary information was denied. Application for probation was denied and judgment pronounced.

The appeal is from the judgments, the order denying the application for change of plea, the order denying a motion for a new trial, and the orders denying the application for probation.

The contention on appeal is “That the judgment of the court is contrary to the law and evidence.”

Each of the grand theft offenses was committed in an automobile at night. The act amounted to what is generally referred to as “pickpocket.” Appellant’s argument is in substance to the effect that the evidence of identification is insufficient. The defendant is a Negro and one of the victims testified, “Well, I thought she was Spanish; she was speaking with a Spanish dialect.” The other victim testified, “She was rattling off, and she impressed me as a Spanish person when she started talking. ” It is upon this testimony together with descriptions as to height that appellant bases the argument that evidence of identify is insufficient.

Without going into details, it is sufficient to note that the witnesses’ testimony as to the identity of defendant was sufficient; the evidence supports the judgment and there are no errors in the record.

The judgments and orders are affirmed; the attempted appeals from the orders made before judgment are dismissed.

York, P. J., and White, J., concurred.