People v. Hurley

WOOD (Fred B.), J.

Convicted of first degree robbery, defendant claims insufficiency of the evidence and errors of law during the trial.

(1)

Is the evidence identifying defendant as a participant sufficient? Yes.

The robbery took place in a tavern between 9 and 10 in the evening. It was perpetrated by one Murphy

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who took the leading part, issuing the orders and wielding a gun,

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assisted by a person who picked up the money and was identified as defendant Hurley by two eyewitnesses, Maloney the bartender and Gately, one of the guests.

Coneededly, defendant and Murphy had been friends for a good many years and a few days after the robbery he took an out-of-state trip with Murphy, remaining away until apprehended. These are circumstances suggestive of flight and consciousness of guilt.

Upon being told there were witnesses, defendant said to the officer who accompanied him back from Chicago, “Well, if you have witnesses and that they identify me, I guess I will have to cop out,” which the officer said meant to plead guilty.

These were circumstances tending to support the eyewitness testimony.

There was evidence of a contrary character but the jury believed the prosecution’s witnesses and resolved the conflict against the defendant.

(2)

Was evidence improperly admitted? No.

A .32 Colt automatic was identified as the gun which Murphy carried and wielded during the robbery. Maloney, Gately and Murphy each testified that it was of the same type and looked like the gun that Murphy used upon that occasion. Defendant tendered no clearly expressed objection to its admission in evidence. His counsel merely asked: “May I ask for what purpose the gun is being introduced . . . ? It is clear from the testimony that the person who was with Murphy didn’t have any weapon or gun.”

The fact that Murphy’s confederate carried no gun did not render the gun inadmissible.