Fouts

This is an appeal from a judgment of conviction of burglary and from an order denying defendant’s motion for a new trial.

The first point made by appellant is that the trial court erred in receiving evidence of a confession of appellant, and this upon the ground that, as put in the brief, “the evidence clearly shows that such confession was involuntary.” We have examined the testimony bearing upon this question and there can be no doubt that there was a substantial conflict upon it. Under such circumstances it was the duty of the trial judge, in the first instance, to determine whether the evidence showed beyond a reasonable doubt that the confession was free and voluntary (People v. Zarate, 54 Cal. App. 372 [ 201 Pac. 955 ]). The judge having resolved the question we can no more disturb his action than we could the action of judge or jury on any disputed question of fact.

The burglary in question was committed by appellant in company with one Avogadro. A part of the defense of appellant was that, although he was at or near the place of the burglary, he did not participate in the commission of the crime, but attempted to dissuade Avogadro from committing it. Appellant himself…