People v. McPhillips

BRAY, J.

Defendant appeals from a judgment of conviction, after jury trial upon the charge of felony, robbery, and from an order denying new trial.

Questions Presented

1. Sufficiency of the evidence.

2. Alleged error in failure to instruct on intent.

Recobd

Defendant was charged with violation of Penal Code, section 211, robbery of Jack Edwards, plus a prior felony conviction which he admitted. On his motion, another information charging. him with grand theft was consolidated for trial. The jury found him guilty of the robbery charge. By stipulation the degree was fixed as second degree. The jury could not agree on the grand theft charge and it was dismissed on motion of the district attorney.

1.

Sufficiency of the Evidence.

While, as usually occurs in criminal cases, there are conflicts and contradictions in the evidence, such contradictions were matters for the jury to consider, and were not such which this court could resolve as matters of law. Nor is the testimony of Miller, as will hereafter be seen, such that we can hold it to be incredible. The evidence amply supports the conviction.

Jack Edwards, the victim, aged 75, resided at the Alta Hotel in San Francisco. He testified that in the lobby that evening, he was engaged in conversation with four or "five others. Defendant was present. Edwards had not known him prior to that occasion. About 1 a. m. Edwards decided to retire. Defendant had led Edwards to believe that defendant was also staying at the hotel. Defendant accompanied Edwards in the elevator to his room. Defendant forced himself into the room, Edwards protesting that he needed sleep. Defendant beat Edwards unconscious. Edwards had in his possession a $20 bill, four $5.00 bills and some silver, all of which defendant took. One of the $5.00 bills had a torn

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corner. Edwards identified it as one of the bills later found in defendant’s possession.