People v. Young

VAN DYKE, J.

Appellant was informed against by the District Attorney of Stanislaus County for the crime of robbery in the felonious and forcible taking from the presence of Johanna Reyes of a radio, and it was further charged that at the time of the commission of the offense he was armed with a deadly weapon, to wit, a .22-caliber rifle. Upon trial he was found guilty as charged and the jury fixed the offense as robbery of the first degree. Application was made for

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probation and the same was denied, but in this connection it fairly appears from the record that the denial was based upon a holding by the trial court that under the provisions of section 1203 of the Penal Code it lacked jurisdiction to grant probation. Appellant was sentenced for the term prescribed by law and from this judgment, from the order denying new trial and from the order denying probation he has appealed.

The facts are as follows: About 9 p. m. on July 14, 1950, appellant and a companion went to the home of Mrs. Eeyes. When she asked what they wanted, appellant, who then had in his hand a .22-ealiber rifle which contained a number of cartridges in the magazine, stated to her that it was a stick-up. The testimony of Mrs. Eeyes was that appellant “was holding it [the gun] with both hands on it, just about like you have it, only at the door he pointed it just a little bit towards me. Q. He pointed it towards you? A. Yes sir.” The men entered the house and appellant’s companion did the talking. He demanded money and when told there was none, asked where the safe was. When told there was no safe, he walked with Mrs. Eeyes to where her purse was placed, but obtained no money therefrom. The men then left but as they left, defendant, who carried the gun at all times, took a table radio with him.

On the appeal from the judgment and from the order denying new trial appellant contends only that the evidence is without conflict that because of intoxication he could not have possessed the necessary intent for the commission of the crime charged. That is not the state of the record. His intoxication, if it existed, was voluntary and there is sufficient evidence in the record to sustain a finding by the jury that he was not intoxicated at all. There is no merit to this contention.