People v. Wilson

The following opinion was prepared by the late Mr. Presiding Justice Grail and is adopted and published as the opinion of the court.

THE COURT.

Defendants were charged with one count of robbery and one count of assault with a deadly weapon. Defendants pleaded “not guilty’’ to both counts and were tried by a jury. The jury found them not guilty on count ene and guilty on count two. Defendants moved for a new trial, which was denied, and it is from this order denying defendants’ motion for a new trial that this appeal is taken.

Viewing the evidence in the light most favorable to the respondent, which it is our duty to do where the contention is made that the evidence is insufficient

(Koeberle

v.

Hotchkiss,

8 Cal. App. (2d) 634, 636 [48 Pac. (2d) 104]), there is substantial evidence that the facts are as follows:

[195]

On the evening of January 2, 1939, the four defendants started out for a ride. Three of them were out of work, and the fourth (Eaton) was considering the purchase of the car in which they were riding. There was in the ear about two gallons of gas, and the defendants had about two dollars between them. That afternoon defendant Wilson had taken a tire-iron out of the car and taped both ends of it so as to make a blackjack out of it. This was done in the apartment where all four defendants were staying. They drove around for an hour or more, and while driving north on San Fernando Road, they saw Hurlbut, the complaining witness, who was “thumbing” a ride. Defendants passed him, but turned the car around and when they were again abreast of him invited Hurlbut to ride with them. He accepted and climbed into the rumble seat with defendant Wilson. They proceeded north to Glendale where, while apparently trying to find a friend of Wilson’s they drove off the highway and eventually came upon a dirt road. Here Wilson hit Hurlbut on the head with the taped tire-iron. Hurlbut was able to get out of the car, but was set upon by Wilson and two of the other defendants. As a result of the beating Hurlbut suffered two bumps on his head and a black eye. He let out screams of pain and defendants were frightened away. During the scuffle ninety-five cents disappeared from Hurlbut’s pocket. (He was unable to testify whether this money was taken from him by defendants or was lost out of his pocket during the fight, and for this reason the defendants were found not guilty on the robbery count.)