People v. Poor

[242]

WOOD (Parker), J.

The defendants, Poor, Gonzales, and Segura, were charged in an information in two counts with robbery while armed with a pistol. The defendants pleaded not guilty. Gonzales admitted that he had been convicted previously of a felony. The trial proceeded as to Gonzales and Segura. Poor testified for the prosecution. The jury found Gonzales and Segura guilty on both counts as charged.

Gonzales made a motion for a new trial upon various grounds, including the ground of alleged newly discovered evidence.

In support of such motion an affidavit by Gonzales was filed which stated in substance that after the trial Segura first' informed Gonzales that Gonzales had no connection with this robbery and that Segura would so testify; that Gonzales could not discover this earlier because Segura refused to divulge the information at any prior time for the reason' Segura hoped to be acquitted of the charge.

In further support of the motion an affidavit by Segura was filed which stated that the robbery was committed by Poor, Segura, and a person called “Freddy,” and that Gonzales was not present or in any way connected with the robbery.

The motion for a new trial was denied, and sentence was pronounced.

Gonzales appeals from the judgment of conviction and from the order denying his motion for a new trial. His contention is that the court erred in denying said motion, made upon the ground of newly discovered evidence.

The argument in support of appellant’s contention on appeal is: that the only testimony connecting him with the robbery was (1) the testimony of Poor, a purported accomplice, and (2) the testimony of Joe Jiminez, a victim of the robbery, whose testimony was weak, confusing, and impeached; that four witnesses testified that appellant was at a cafe, about six miles from the scene of the robbery, at the time the robbery was committed; that if such newly discovered evidence were presented upon a new trial, it is probable that appellant would be acquitted.

At the trial Poor testified that he, Segura, and appellant robbed Jiminez and Salas, the other victim; that they went to a hotel and divided the loot. Jiminez testified that appellant robbed him. Segura testified that he (Segura) was not present at, and did not participate in, either of the robberies; that