People v. Baa

GIBSON, C. J.

This is an automatic appeal from a judgment imposing the death penalty.

Count one of the information charged appellant and Preston Jones, both Negroes, with the murder of Tom Din Toy, a Chinese. Count two charged them with having conspired with Robert Denton, Grant Harris and Willie Davis to rob Toy. Count three charged appellant and Jones with the robbery of Toy. Appellant and Jones, represented by separate counsel, were jointly tried on all three counts.

The deceased was robbed and shot about 1:30 o’clock in the morning as he entered the hallway of the Service Hotel in the city of San Diego. The night clerk at the hotel testified that he heard a noise in the entrance way, followed by a flash and report of a gun. He saw the man who fired the shot bend over the victim and then run out of the hallway. Five minutes after the shooting he identified the jacket then being worn by appellant as similar to the one worn by the person who did the shooting.

A sergeant in the United States Marine Corps testified that just prior to the shooting he saw three men cross the street in front of the Service Hotel. Two of the men were about 15 feet in back of the third one. All three entered the hallway, there was a shot, and two of the men ran out to the street and separated. Appellant ran between automobiles parked near the hotel.

Two police officers heard the shot and saw two men run from the Service Hotel entrance. One of the officers saw appellant attempt to hide under an automobile parked at the curb near the hotel, and immediately took him into custody. The second officer pursued the other man who escaped.

Two detectives who came on the scene shortly after the

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shooting testified that while lying wounded on the hotel steps Toy pointed at appellant and said, “That is him, that is him,” to which accusation appellant made no reply. On the way to the police station, appellant, according to these witnesses, stated that “the Chinaman wouldn’t have got shot if he had handed over the money.”

A gun containing one exploded cartridge was found at the curb near the hotel. A chambermaid in a San Diego hotel, where appellant lived under the surname of Alexander, identified the gun as one she had seen under a pillow in his room.