People v. Spellings

BARNARD, P. J.

The defendant was accused of the crime of armed robbery alleged to have been committed on February 19, 1955. He was represented by counsel appointed by the court, and pleaded not guilty. On a first trial, the jury was unable

to

reach a verdict. On the second trial a jury found him guilty as charged, fixing the degree as first degree robbery and finding that he was armed with a deadly weapon at the time of the robbery. His motion for a new trial and his application for probation were denied, and he was sentenced to imprisonment at San Quentin. He has appealed from the judgment and from the order denying his motion for a new trial.

At about 7:30 on the evening of February 19, 1955, the proprietor of a liquor store in Fresno was robbed of a sum of money by a man armed with a revolver, who had come in and asked for a carton of beer. When the proprietor brought the beer the man had a gun in his hand and, on his demand, the proprietor took the money from the cash register and gave it to the man, who then left the store. The victim testified that the robber wore a brown leather jacket and that he held a black revolver, which the victim said looked like a .38. From the description furnished them, the police started to look for a man about five feet eight inches tall and who had reddish blond hair.

On February 20, the police officers went to the home of the defendant, having learned that he answered the description of the man they sought. At that time he denied that he owned a revolver and denied that he had a brown leather jacket. They took the defendant to the liquor store, and the proprietor refused to positively identify the defendant as the robber. He stated then and later on the stand that the defendant

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looked like the man. but that he was not sure. He testified on cross-examination that he did not know whether this was the right man or not, that he was excited at the time of the robbery, and that “I never see hardly anything no more after I see the gun.”

On February 21, having learned that the defendant had been in the vicinity about the time the crime was committed and other facts which aroused their suspicion, and thinking he might decide to leave town, the officers decided to watch the defendant’s home. In the early evening of that day an officer parked near the defendant’s home and kept watch. Shortly thereafter he saw the defendant make eight or 10 trips from his house to his panel truck parked at the curb, taking out various articles. A little later the defendant, with his wife and baby, entered the truck and drove away. The officer followed and radioed for help. When another police car arrived the defendant was stopped near the north edge of Fresno, as he was traveling north. The defendant and the ear were searched, $21 in bills was found on his person, and a brown leather jacket with a .22 caliber revolver fully loaded with six cartridges were found in a holster in the car. There was evidence that this revolver was built on the same frame as a .38, but with a smaller bore. A later search of the panel truck revealed a $5.00 bill and two $1.00 bills “shoved down” in a rip in the upholstering of the driver’s seat.