People v. Keilly

[766]

STURTEVANT, J.

Appellant, John F. Keilly, was tried by a jury and convicted on two counts of robbery in the first degree committed on the 12th day of April, 1941, as alleged in an information filed by the District Attorney of Alameda County; the first count charged him with robbing Mary Correia of the sum of $190, more or less, a number of fountain pens and a quantity of drugs, consisting of morphine and codeine, by the use of a deadly weapon, to wit, a pistol; the second count charged appellant with robbing Herman Correia, the husband of Mary Correia, at the same time and place, of a pocket watch, a wrist watch, a diamond ring and an Elk’s tooth, by the use of said deadly weapon.

The information further charged appellant with two prior felony convictions alleging the service of sentences on both, the first, a burglary on the 29th day of September, 1924, and the second, robbery on the 11th day of August, 1930. The jury also found the two prior convictions were true, as alleged in the information.

Upon denial of a motion for a new trial, appellant was sentenced to San Quentin Penitentiary for life, the term prescribed by law, as an habitual criminal. Notice of appeal was thereupon given by appellant from the judgment and the order denying his motion for a new trial.

Herman and Mary Correia, husband and wife, owned a drug store on Foothill Boulevard in Alameda County. On the night of April 12, 1941, at about the hour of 11 o’clock p. m., while they were closing their business for the night, Mary Correia was accosted at the front door of said drug store by an accomplice of appellant. She had opened the front door with the day’s receipts in her purse; her husband had put out the lights in the rear room and was coming out of said room, when said accomplice thrust a gun against her ribs and said, “Where are you going, sister, you are not going home. You are going in the back room with me.” He pushed her along towards the rear room with the gun at her back. Meanwhile, appellant had forced her husband, at the point of a gun, to return to said back room where, under cover of the gun of the accomplice, Herman and Mary Correia were bound, hand and foot, by appellant; She was pushed or thrown into a chair, her husband was forced to turn his face to the wall. Appellant’s accomplice took the day’s receipts, about $175, from her bag, and the fountain pens; the appellant took all the morphine and codeine the Correias had in stock, and the pocket and wrist watches of