People v. Connolly

California Court of Appeal Apr 2, 1951 No. Crim. 4602Published

Before: Shinn

AI Brief

AI-generated · verify before citing

Holding. The court held that the denial of probation is a discretionary act that will not be disturbed on appeal absent a clear showing of abuse, and it refused to presume that the trial court relied solely on the jury's finding that the defendant was armed with a 'deadly' weapon. Furthermore, the court held that a defendant is not prejudiced by having a different judge hear an application for probation than the one who presided at trial.

Issues

Whether the trial court erred in its instructions regarding 'deadly' versus 'dangerous' weapons in relation to probation eligibility.
Whether the trial court abused its discretion in denying probation without comment.
Whether the defendant was prejudiced by having a different judge hear his application for probation than the one who presided at trial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“This court may not presume that the trial court accepted the finding of the jury that the defendant was armed with a “deadly” weapon rather than with a “dangerous” one when considering the application for probation.”

SHINN, P. J.—

Defendants, Robert Irvin Connolly and Lloyd Allan Phillips, were charged by amended information with two counts of robbery while armed with deadly weapons, to which they pleaded not guilty. (Defendant Connolly was charged with and admitted a prior conviction of a felony, a violation of Yeh. Code, § 503.) After trial by jury, Count I was dismissed as to defendant Phillips and defendant Connolly found not guilty. Both defendants were found guilty as to Count II and the jury further .found specially that both were armed with deadly weapons at the time of the robbery. Both defendants filed application for probation and it was denied without comment in each instance. Defendant Phillips alone appeals.

Defendant Phillips contends that the trial court did not properly instruct the jury and that he was thereby deprived of his right to have his application for probation considered on the merits. He also contends that he was prejudiced in that the same judge who presided at the trial did not consider his. application for probation.

At about 1 o’clock on the morning of May 16th, 1950, the defendants entered the liquor store of one Max Weiss. Mr. Weiss testified that he saw two blue-barrelled, rather heavy guns “on” both defendants; that one of them searched him and after removing the contents of his pockets forced him to open the cash register; that he was then told to lie face down on the floor. He stated that approximately $224 was taken by the defendants from the register and from his person. When the defendants were apprehended on the afternoon of May 16th, by police officers who pursued them for about 35 miles, two loaded revolvers were found in their car.

Defendant maintains that there was no evidence to show that the guns were loaded at the time of the robbery or that they were pointed at Mr. Weiss or used in any manner, and that the jury should have been instructed concerning ‘ ‘ dangerous” as distinguished from “deadly” weapons inasmuch as one who has been found guilty of robbery while armed with a “deadly” weapon is ineligible for probation under the provisions of section 1203 of the Penal Code.

[247]

The court defined robbery and instructed as to what constitutes robbery of the first degree. Section 211a of the Penal Code provides that robbery is of the first degree when it is perpetrated by a person who is armed with a 1 ‘ dangerous

People v. Connolly

AI Brief

More from California Court of Appeal

Related research

AI Brief