People v. Harvey

JENNINGS, Acting P. J.

The defendant in the above-entitled action was accused by an information containing four counts with the offenses of kidnaping for the purpose of extortion and robbery and of robbery. In counts one, two, and four the crime of kidnaping was charged and in count three the offense of robbery was alleged. On arraignment the defendant pleaded not guilty as to each offense and was subsequently tried before a jury which returned a verdict finding him guilty of each offense alleged in the information. Prior to rendition of judgment the defendant presented a motion for a new trial which was denied. From the judgment pronounced against him and from the order denying his motion for a new trial the defendant appeals.

The points urged on this appeal are, first, insufficiency of the evidence to sustain the verdict; second, error committed by the trial court in admitting evidence which showed that the defendant had suffered a prior conviction of a felony; third, abuse of discretion by the trial court in denying defendant’s motion for a new trial.

With regard to the contention of evidentiary insufficiency the only respect in which it is urged that the evidence was insufficient relates to the matter of identification of the defendant. Examination of the transcript on appeal in its entirety demonstrates the futility of this contention. The three persons mentioned in the information as the victims of defendant’s kidnaping operation testified during the trial and each of them positively identified the defendant as the individual who committed the offense on the date alleged in the information. It is true that on cross-examination two of these witnesses admitted that on different occasions they had inspected two individuals other than defendant and had expressed an opinion that each of such persons bore a resemblance to the man who had kidnaped them. Nevertheless, on direct examination, each of these two witnesses positively identified the defendant as the person who had committed the offense, Whatever discrepancies appeared in the testimony

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of these witnesses had no greater effect than to create a conflict in the evidence which was resolved against defendant by the jury. It is not the function of a reviewing court to pass upon the credibility of witnesses or the weight of evidence. These matters are confided exclusively to the trial court. It may further be observed that the third victim in the kidnaping episode testified that she had not inspected any person suspected of the offense other than the defendant and that when she was asked if she could identify the perpetrator of the crime from a group of five men of approximately the same height and weight she indicated the defendant. It is obvious that the contention of evidentiary insufficiency with respect to the fact of identification is entirely devoid of merit.