People v. Quinn

BARNARD, P. J.

The defendants were charged with the crime of robbery in that on April 23, 1946, they willfully, unlawfully and feloniously took a wallet from one James Van Wagner, under the circumstances named in the statute. A jury found them guilty and they have appealed from the judgments and from the order denying their motions for a new trial.

There is little, if any, dispute as to the material facts. Van Wagner was a student in the San Diego State College. About 9 or 9 :30 p. m. on April 23, 1946, he drove into Balboa Park in a Plymouth automobile, accompanied by a girl friend. While they were parked on a side street, some two or three blocks from the main entrance to the park, the appellants approached the car! Alverson pointed a pistol at Van Wagner and ordered him to get out of the car with his hands up. When he complied he was ordered by both Alverson and Quinn to step back. Alverson then told Van Wagner to throw his wallet on the ground. Van Wagner took his wallet out of his pocket and threw it on the ground, a distance of about six feet. Alverson then said “I will mail it back to you.” Van Wagner replied that this would not be necessary as there wasn’t any money in it. He was then told to pick up the wallet and show it to Alverson. When he took a step toward Alverson he was again told by both Alverson and Quinn to

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step back. He stepped back, opened the wallet and showed the appellants that there was nothing in it. Alverson then said “What about your girl friend, does she have any money?” Van Wagner replied “No” and Alverson then said: “All right. Get in that car and get out of here.” Van Wagner then drove away and notified the police. The appellants walked out of the park and some five or six blocks toward the downtown section of San Diego, where they were taken into custody by the officers. At that time Alverson had a fully loaded pistol and five extra cartridges in his pockets.

Alverson had been released from Preston during the preceding February, and Quinn had previously been convicted of burglary. Van Wagner had never known either of the appellants. Alverson did not personally know Van Wagner but on several occasions had seen him entering or working with a Plymouth car across the street from Alverson’s home. Alverson testified that his reason for having the gun was that he was taking it downtown to sell it. He also claimed that it was not loaded during the robbery, but that he and Quinn loaded it as they were walking away from the park. Alverson admitted that he had done all of the things testified to by Van Wagner and Quinn admitted on the stand that he had fully participated therein. They testified that they had accidentally met near this entrance to the park and that they walked around searching for an address that had been given to Quinn by a girl. They were unable to locate the address and Alverson testified that he then noticed Van Wagner’s car over in the park and decided to play a joke on him, and that he “was going to tell him about it the next day. ”