People v. Anderson

PETERS, P. J.

Anderson and his codefendant Malone, by information, were jointly charged with having committed three separate robberies, and with the theft of an automobile. In addition, Anderson was charged with a prior conviction of forgery (which he admitted), for which he was on probation at the time the offenses charged in the information were committed. Malone was found guilty on all three robbery counts, and of the theft of the automobile. Tie has not appealed. Appellant was convicted on one robbery count and of the theft of the automobile.

On this appeal the sole contention of appellant is that, as a matter of law, the evidence is insufficient to sustain his conviction.

The theory of the prosecution was that Malone and Anderson engaged in the robbery of various grocery stores in Oakland ; that Malone robbed the stores and that Anderson drove the car used by the parties for their “getaway”; that for such purposes the parties used an automobile recently stolen by them. To support this theory the prosecution produced the following evidence:

George McClain and his partner, Fitzpatrick, operated a used car lot in Oakland. On July 5, 1939, they owned and had for sale at their place of business, an Auburn convertible sedan, painted light tan, with red wheels and a canvas top. It bore 1939 California license plates

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E 723. The ear was on the lot at, or about, 1 P. M. on July 5th when McClain left his place of business unattended for about twenty minutes. When he returned at about 1:20 P. M. the car was gone. He testified that neither he nor his partner gave any person permission to take the car. At about 3 o’clock of that day McClain received a telephone call from a person unknown telling him the car would be left on a street near the used ear lot. Some time after 4:30 P. M. of that day the ear was found abandoned on a street nearby.

When McClain returned to his place of business at 1:20 P. M. and discovered that the Auburn was missing, he was

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accompanied by a business acquaintance by the name of Virgil Martin. Martin was engaged in the tire business and had sold McClain tires for the Auburn. He was familiar with the car. Later that afternoon. Martin and his wife were driving out East Twelfth Street in the city of Oakland, when, between Fourth and Fifth Avenues, they saw the missing Auburn cruising slowly along. Mrs. Martin fixed the time as between 2 and 3 o’clock, while Mr. Martin fixed the time as between 2:30 and 3 o ’clock. The Auburn slowly proceeded to completely encircle the block, followed by the Martins. After the Auburn had encircled the block Martin drove alongside. Both the Martins testified there were two men in the car. Mrs. Martin positively identified appellant Anderson as the driVer but could not identify Malone as the passenger. Mr. Martin positively identified Malone as the passenger, but could not positively identify Anderson as the driver, although he testified that Anderson “looked like” the driver of the car.