People v. Mullins

PEEK, J.

Defendant Bradham, together with two co-defendants, Smith and Mullins, was charged with a. violation

[669]

of section 211 of the Penal Code. The defendants were tried jointly following pleas of not guilty. The defendant Smith was found not guilty, and the defendants Mullins and Brad-ham were found guilty of robbery in the second degree. The motion of the defendant Bradham for a new trial was denied. He alone appeals from that order and from the judgment of conviction, contending generally that the evidence was insufficient to support the conviction; that the trial court committed prejudicial error during the trial and on the motion for new trial; and that the district attorney was guilty of prejudicial misconduct.

Viewing the evidence, as we must, in the light most favorable to respondent, it appears that while one John Long was walking to his home in Broderick from Sacramento, he observed a brown or tan 1949 or 1950 Pontiac sedan following him. The car passed him slowly and continued on to a darkened service station where it waited until he passed. Long observed that the car held four occupants; that the right rear fender had been damaged and the red glass of the tail light on that side had been broken. As Long continued on past the service station, the car again followed him, and shortly thereafter stopped abruptly on the opposite side of the street. Three men got out of the car and accosted him. One of them got behind him, and holding a sharp object at his throat said, “This is a stick-up . . . Hand over your goods.” Long was forced to give over a leather jacket, a wrist watch, a cigarette case, a cigarette lighter and 15 cents in change. The three men then fled in the car which, in the meantime, had made a U-turn and was headed back toward Sacramento. Within a few minutes Long reported the robbery to the Yolo County authorities who radioed a description of the car and its occupants to the Sacramento police, and shortly thereafter the car was located in that city. When the occupants of the car were searched, a Benson cigarette lighter was found in the possession of Mullins. Long was brought to the scene and identified the car as the one involved in the robbery and the cigarette lighter as the one which had been taken from him. His identification of the lighter was based upon the fact that it had a scratch on the cover and the cotton filler was red rather than the customary white. The occupants were interrogated by the police officers and gave conflicting stories as to their whereabouts that evening. At the trial Long identified Bradham as the person who had said, “This is a stick-up . . . Hand over your goods.” His identification of Bradham was based