People v. King

[673]

BARNARD, P. J.

On December 9, 1934, the defendant spent the early evening at El Cajon in company with three other young men, Taylor, Osborne and Smith. About 10 o’clock the four started for San Diego in the defendant’s ear which he drove. On the way the defendant told Smith that a certain doughnut shop would be “an easy place to take” as he had previously held it up. On arriving at this doughnut shop Smith went in and, threatening the proprietor with a pistol, took certain cash and other articles from the cash register while the other three waited in the defendant’s automobile. After Smith returned to the car they drove rapidly to another point where Smith held up a liquor store while the others again waited. After the second holdup Smith gave the defendant a part of the cash taken, although it does not clearly appear from which place it came, and the party then visited various night clubs.

The defendant was charged with the crime of robbery under two counts, the first relating to the robbery of the doughnut shop and the' second to the robbery of the liquor store. .He was convicted on the first count and has appealed from the judgment entered and from an order denying his motion for a new trial. It is earnestly contended that there is nothing in the record to connect the appellant with the offense in question since Smith testified at the trial that he went into the doughnut shop to purchase some doughnuts because he. was hungry, that he conceived the idea of robbing the place after he entered the same, and that it was, therefore, impossible for the appellant to have known anything about it.

The first contention, that the evidence is not sufficient to sustain the verdict against the appellant, is largely based on the fact that Smith, while on the witness stand, assumed the entire responsibility for the holdup and attempted to exonerate the appellant. Smith’s story as told on the witness stand was equivocal and almost unbelievable and did not agree with the story he had previously told to the officers. Although he testified that the appellant knew nothing of his intention to hold up the doughnut shop, he inadvertently involved him when he also testified that he had talked with him and that the appellant said he did not want to go into the doughnut shop because “he had held up that fellow once before”. The only inference reasonably to be