People v. Norwood

MARKS, J.

This is an appeal from a judgment finding defendant guilty of robbery in the first degree, and from an order denying his motion for new trial.

Defendant was charged with robbing Paul Martinowsky of $70.58 in San Diego on February 5, 1940. He was charged with having suffered two prior convictions and that he had been confined in the penitentiary on one of them. He admitted the prior convictions and pleaded not guilty to the charge.

Defendant did not deny the fact of the robbery. He relied on the defense of voluntary intoxication to an extent that he was unable to have had an intent to steal.

[504]

The trial court excluded much of defendant’s evidence on the question of intoxication and refused to give his requested instructions on the subject. This was held to be reversible error under the facts disclosed in the case of

People

v.

Crowl,

28 Cal. App. (2d) 299 [82 Pac. (2d) 507].

There is little conflict in the evidence. Defendant and Daniel Dillon committed the robbery. They were arrested shortly after the commission of the crime. The next day, when defendant was seemingly in possession of his faculties, they made statements to the San Diego police which were taken down by a reporter and which were read in evidence. Defendant does not question the correctness of the reporter’s notes nor of his transcription of them. A number of the facts which we will summarize will be taken from these statements.

Dillon and defendant had been acquainted for about ten years. They spent the larger part of February 5, 1940, repairing defendant’s automobile. They drank whiskey during the day. We quote the following from Dillon’s statement made in the presence of defendant: “I don’t know, I believe I suggested that we rob this filling station. . . . The filling station on Highland and El Cajon. We decided that we would have to steal a car. We walked down here, I can’t tell you to what street it was; Mr. Norwood went down by a house and I stood on the street and he came out and motioned to me to come in and we got into this car and drove away. . . . We drove out El Cajon and drove around considerable. We drove by this place two or three times and once we drove in and didn’t stop. Then we drove around some more and came back and parked on Highland Avenue right by the side of it and we got out and went to the back of the station. This attendant started across to the toilet and Mr. Norwood hit him with his fist and knocked him down and I went in and opened the cash register and took the money. We got in the car and drove around the block and ran the car into the back end of a parked car and then we left the car and walked down Fairmont Avenue to University and took the street car to Park Boulevard. ’'