People v. Kostal

[121]

SHINN, P. J.

Appellant Kostal was accused of robbery while armed with a deadly weapon by indictment which alleged that he had previously been convicted of robbery and had served time therefor. He pleaded guilty to th'e former conviction and, in a jury trial, was found guilty of armed robbery. He appeals from the judgment and an order denying his motion for a new trial.

Defendant was represented by counsel at the trial, but represents himself on the appeal. His principal contention is that he was not sufficiently identified as one of the two men who committed the robbery. His other points relate to matters as to which no objection was registered during the trial.

There was testimony of the People’s witnesses of the following facts: At about 11:20 on the morning of November 21, 1952, Harry LaVogue, accompanied by Wendell Miller, parked a car behind the Kozy Korner Kafe in Los Angeles where LaVogue was manager and bartender. As they started to get out of the ear a man walked around the corner of the building and accosted Miller and LaVogue. He drew a revolver, demanded money, and ordered them to unlock the back door and go into the office. He wore dark glasses, a nautical-type hat with a bill, and a tan suede or khaki jacket, the collar of which was turned up. Miller and LaVogue said they had no money. The man tore open LaVogue’s jacket and removed $4,129 from his shirt. The cook for the establishment then began to emerge from the back door. The robber pointed the revolver at him and ordered him back inside. He then backed away from Miller and LaVogue and went to a green 1940 Chevrolet sedan parked in the street about 60 feet from the rear of the café. Another man was waiting at the wheel of the Chevrolet. Defendant got in the car and the two men drove away. LaVogue hailed a passing police car which unsuccessfully gave chase. At about 11:30 the same morning, one Franklin and defendant, who still wore the described cap and jacket, but not the dark glasses, parked the Chevrolet near 2330 Griffin Avenue, trotted a short distance down the street, entered defendant’s green 1948 Cadillac sedanette, which was parked at the curb, and drove away. On the trial defendant did not dispute the fact that he owned a green 1948 Cadillac sedanette.

On the day of the robbery the sun shone brightly. The evidence tending to identify defendant as the man who robbed