People v. Tullous

SCHOTTKY, J.

On the afternoon of August 29, 1952, between the hours of 3 -.00 and 3:30 p.m., a man entered the Western Café located at 2001 K Street in Sacramento. After

[638]

entering the café he brandished a .22 caliber revolver and stated to the bartender, a Mr. Rossi, “This is a holdup and give me all of the cash you have and put it in a sack,” or words to that effect. The bartender started sacking the money, and upon one of the patrons in the place stating to the man that he must be joking, the would be robber fired a shot over the patron’s head into the wall above the back bar. The proprietor of the café and one or two of the patrons became frightened and ran from the barroom, and the would-be robber apparently became frightened also and fled from the café without obtaining any money. He went to a 1942 Plymouth green coupé parked near the side door of the café and drove away from the scene of the attempted robbery. Later in the afternoon defendant appeared at police headquarters and inquired if he was being sought. He was arrested and placed in several lineups from which a number of persons identified him as the would-be robber.

On September 25, 1952, information was filed charging the defendant with the crimes of attempted robbery and violation of the Dangerous Weapons Control Law. He entered pleas of not guilty and was tried by the court sitting without a jury, a jury having been waived, and was found guilty on both counts. Defendant made a motion for a new trial which was denied.

At the trial, four witnesses identified defendant as the man who entered the café and attempted the robbery, and also testified that they had so identified defendant from police lineups. There is some variation in the testimony of the identifying witnesses as to what defendant was wearing at the time of the attempted robbery, and as to the exact time during which the robbery was attempted. All of the witnesses positively identified the defendant. It was also testified to that the car used by the defendant during the attempted robbery and seen by several witnesses had been borrowed by defendant from a local used car lot about the time of the attempted robbery, and returned by him thereafter.

The defendant testified that he had arrived by bus from Tacoma, Washington, around 1:30 p.m. in the afternoon of August 29, 1952, and had called his mother to tell her that he was in town. He stated that his mother had informed him that police officers had just been at her home looking for defendant in connection with the attempted robbery, and that upon receiving this word from his mother he went to the police station and inquired if he was being sought.