Matezuski

Information for grand larceny. Verdict of guilty. Defendant appeals from judgment, and an order denying his motion for -a new trial.

It is contended by appellant that the verdict is not supported by the evidence because it tends to establish burglary as well as grand larceny. If it be conceded that larceny is not included in a charge of burglary, and that evidence of a conviction of one of these crimes would not sustain a plea of former conviction, upon a trial of a charge of the other (People v. Devlin, 143 Cal. 128 , [ 76 Pac. 900 ] ), the jury may, nevertheless, determine from evidence which tends to sustain both which crime was actually committed. The finding upon such an issue is one of fact and will not be disturbed, if there is evidence to support it.

Another ‘ reason assigned for reversal on the ground that the evidence does not support the verdict is, that the testimony of the witnesses for the prosecution was conflicting, and that the preponderance of such evidence shows the defendant to be innocent rather than guilty. An argument based upon the weight of evidence, which is admittedly conflicting, will not be considered by an appellate court in reviewing the…