People v. O'Keefe

GRIFFIN, J.

Defendant and appellant Patrick O’Keefe and defendants O’Neil and Roberts were charged with the crime of robbery of one James Howe of a wrist watch and

[330]

$2.00 in cash by force and fear on March 25, 1955, in violation of section 211 of the Penal Code. Defendant O’Neil pleaded guilty. A jury trial resulted in a conviction of the appellant and defendant Roberts of robbery, second degree. Defendant O’Keefe appealed and alleged insufficiency of the evidence and failure of the court to instruct the jury on its own motion in reference to his claimed defense.

About 2:30 p.m. on the date charged the complaining witness Howe was in a public rest room in Pacific Beach washing his hands. Two men entered, beat him and took his watch and about $2.00 in cash. According to the witness the two men who held him up spoke to someone who was outside of the rest room, saying: “He hasn’t got anything.” After the robbery the complaining witness observed his two assailants drive away in a car in which two other men were seated. Three men were in the front seat and one was sitting in the rear seat. He took the license number and called the police. He positively identified O’Neil as one of the two who accosted him and identified one Palmer (depicted in a photograph) as the other.

Police officers testified that soon thereafter, about 6 p. m., they apprehended the occupants of the ear, consisting of Roberts the driver, appellant O’Keefe, and O’Neil, all sitting in the front seat. They talked to them. In reply to questions Roberts said: “Talk to my lawyer,” and appellant O’Keefe said he had arrived in San Diego the previous day and had spent the night in the car in front of Roberts’ house and they had spent the day at the beach; that after appellant’s arrest he said that he and O’Neil drove the ear to San Diego from San Francisco and stopped in front of Roberts’ house and stayed there that night; that on the 25th they all went to the beach; that they had been drinking quite a bit; that shortly before noon he became sick and went to the car; that O’Neil and Roberts got in it and drove around and he remembered Roberts stopping in front of the rest room, but he did not know what was going on. He identified Palmer from the photograph and said he thought he left for Colorado soon after this occasion.