People v. Dyer

GRAY, J.,

pro tem.

At the close of the trial in which appellant, although represented by the public defender, had actively examined witnesses, the jury found him guilty of robbery in the first degree, as charged in the indictment. Upon arraignment he had admitted a prior conviction of robbery. His motions for a new trial and in arrest of judgment haxdng been denied, he xvas sentenced to imprisonment in the state penitentiary. He appeals

in propria persona.

Appellant does not dispute the sufficiency of the evidence to establish the commission of the crime by two unmasked men but he does question the sufficiency of witnesses’ identification of him as a participant therein. The following summary of the essential evidence bearing upon this identification

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omits all reference to the other participant, as he is not a defendant. The usher of a theater testified that a man, whom he identified as appellant, approached him in the well-lighted lobby at about 10:45 P. M. and, while standing within two feet of him, inquired as to the presence of a former employee of the theater; that appellant, upon being advised of the latter’s absence, asked for the manager, and that he notified the manager by an inter-office telephone that appellant wished to see him. The manager swore that in response to the telephone call he went downstairs into the lobby where he met a man whom he identified as appellant; that the latter, after inquiring for the former employee, approached closely and displayed a gun; that, as commanded by appellant, he accompanied him upstairs to an illuminated office, where he delivered to appellant money which he removed from the safe; that both then walked downstairs, out of the theater and along the sidewalk to the next corner where appellant hastily entered a parked automobile; the occupant of this automobile stated that the man entering the automobile, whom he identified as appellant, forced him, by threatening gestures with a gun, to drive several blocks, during which time they conversed, and that then appellant, after offering to give him taxi fare from four rolls of nickels which he took from a sack carried under his coat, ejected him from the automobile and drove it away. Each stated that appellant was unmasked.