People v. Voiler

SCOTT, J.,

pro tem.

Two indictments were returned against defendant Friedman charging two separate offenses of robbery, and were consolidated for trial. He was convicted by a jury of robbery in the second degree as to each offense. From judgment of conviction and order denying motion for new trial as to each charge said defendant appeals.

Each indictment is alleged to be deficient in one respect, although conceded to be sufficient otherwise. Appellant urges that in a charge of robbery it is necessary to include “allegations from which it can be ascertained that the property alleged to have been taken was not the property of this appellant”. The indictments were sufficient under the authority of

People

v.

Covington,

1 Cal. (2d) 316 [34 Pac. (2d) 1019].

The first indictment charged appellant and two co-defendants, Voiler and Cohen, with robbing one Mae West on September 28, 1932, taking from her money and jewelry

[727]

valued at $15,400. The second indictment charged appellant and Cohen with robbing one A. Brown of $220 on or about September 21, 1931.

The evidence indicates that about 7 o’clock on the evening of the West robbery the complaining witness was seated next to defendant Voiler in the front seat of a parked sedan. A man came up to the car, opened the right-hand door and said, “this is a stick-up”. He pointed something resembling a gun at the occupants and took a purse and jewelry, speaking several sentences to them during the operation. He wore no mask and had a lighted cigarette in his mouth. The complaining witness observed his eyes, part of his nose and the center of his face. She also observed his height and size, and that his hand was heavy and rather stout. Pursuant to a telepone call a few days later the purse was recovered but not the money or valuables. A year later, on Thanksgiving night, 1933, appellant was brought out by officers to the spot where the offense was committed and was there recognized by the complaining witness. Appellant explained that Voiler had planned the holdup and that he, appellant, had done it and said he was sorry. While in the custody of the officers appellant made a confession as to the essential elements of the crime charged. There was a sharp conflict in testimony as to whether Friedman had been subjected to a beating for the purpose of inducing him to make such a statement, but it appears from the record that the court and jury probably concluded that the bruises complained of were received when appellant resisted arrest and not otherwise, and that the confession was voluntarily made and not induced by force or threats. The trial court’s error in not admitting evidence offered on