People v. Walker

PEEK, J.

Defendant Walker and one Thelma Linnigan were charged by an information with the crime of robbery. Prom a judgment of conviction following jury verdicts finding them both guilty of robbery in the first degree, Walker alone appeals.

Three contentions are made: (1) that the evidence was insufficient to support the judgment of conviction of robbery in the first degree; (2) that the court erred in failing to instruct the jury on larceny as a lesser and included offense; and (3) that the court erred in permitting the court reporter to read the instructions to the jury.

The only evidence offered on behalf of the prosecution was the testimony of the complaining witness, Juan Ibanez Munoz, who testified through an interpreter. His testimony was that he was approached by Walker and asked in Mexican if he desired a woman. Upon his affirmative reply he was taken by the defendant to a hotel where he met the defendant Linnigan, a prostitute. Juan and Thelma proceeded to an upstairs room while Walker remained downstairs. During the act of intercourse which followed, Juan heard a noise, turned and saw defendant Walker taking five $20 bills from Juan’s wallet. Upon his demand, defendant returned the wallet but without the money. During the argument between Juan and Walker, Thelma had grabbed Juan’s trousers from a nearby chair and had taken approximately $25 from one of the pockets. When Juan continued his demand for the return of his money, Walker threatened him with a knife, shoved him toward the door and told him to leave.

The only evidence offered by defendants was given by the officer to whom Juan reported the robbery, and through whom they attempted to impeach Juan’s testimony upon the basis of ambiguities and inconsistencies in his statements.

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The testimony given by the complaining witness was not, as the defendant contends, so contradictory, inconsistent or ambiguous as to be inherently improbable and hence insufficient to support the verdict of the jury. The complaining witness was a 25-year-old Mexican, unable to speak the English language. His testimony, as well as his report to the police, was given through interpreters. Under such circumstances, minor inconsistencies could well be expected. Likewise it cannot be said that the testimony is incredible because the situation revealed by Juan’s testimony was unusual.