People v. Vienne

McMURRAY, J. pro tem.

*

This is an appeal from a judgment of the Superior Court of the County of Sacramento wherein the appellant was convicted of robbery in the first degree. It is also an appeal from an order denying a new trial.

The appellant was charged with two counts of robbery and was acquitted on one count. The identification of the appellant as the perpetrator of the robbery of which he was convicted is certainly not the type of testimony which should be taken as a model for identification in criminal trials. However, this question is as to the sufficiency of the evidence and is a matter for the jury.

(People

v. Newland, 15 Cal.2d 678 [104 P.2d 778].) The one witness who stated he saw defendant’s face testified in a manner which leaves something to be desired, but this court cannot for that reason upset the identification. In

People

v.

Wilson,

76 Cal.App. 688, at page 700 [245 P. 781], identification by the back and shoulders was held to be sufficient identification. The appellant also contends that it was improper to permit the introduction of evidence of prior identification of the accused. This proposition is without merit, since the fact of prior identification was brought out on cross-examination by appellant’s counsel.

Appellant further contends on this appeal that the deputy district attorney was guilty of misconduct in certain statements contained in his closing argument. The deputy district attorney who tried the case in his closing remarks stated that the defendant’s conduct in not telling the police at the time of his apprehension, or a representative of the district attorney’s office at a subsequent questioning, of an alibi to which he testified in the trial was a matter which the jury should consider to determine whether it was the conduct of an innocent man or the conduct of a guilty man. The defendant’s counsel immediately cited this as misconduct, and the trial court, with commendable promptness, cautioned the jury that it should not regard such statements as evidence and that they were to be bound only by the evidence introduced before them. Despite the court’s attempt to cure the error made by the deputy district attorney in so commenting

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