People v. Daly

HERNDON, J.

A jury convicted appellant of first degree robbery, and found that he was armed with a deadly weapon at the time the offense was committed. He seeks a reversal on three grounds: (1) that the district attorney was guilty of prejudicial misconduct in asking certain improper, leading and suggestive questions; (2) that the evidence is insufficient to support the verdict; and (3) that appellant was not sentenced within the time prescribed by law.

The essential substance of the evidence will be summarized. Douglas Wolfe, a service station attendant, testified that on the night of August 11, 1957, at about 11 o’clock, a warning signal directed his attention to the men’s restroom. As he entered that room a man’s voice informed him that “this was a hold-up” and ordered him to put up his hands. Wolfe obeyed and turned around to observe a man wearing dark glasses, with a handkerchief covering his nose, pointing a revolver at him. The robber took from Wolfe his station keys, one of which fitted the cash box, and ordered him to stay in the restroom five minutes. Wolfe overheard conversation between the robber and another person who apparently was a confederate. After the departure of the criminals, Wolfe found that the cash box had been opened and the money taken therefrom. The telephone cord was broken. Investigating police later found fingerprints on the telephone receiver.

Some five months later Wolfe selected out of a line-up of five men two who appeared to have the same general physical characteristics as the robber. After hearing the two men talk, Wolfe designated appellant as the one whose voice resembled the voice of the robber. A detective, whose qualifications were not questioned, testified positively that the fingerprint found on the telephone receiver were those of appellant.

Appellant sought to prove an alibi by his own testimony and that of Ms mother to the effect that he and his fianceé had spent the night in question in the home of his parents. The direct examination of the witness Wolfe included the following: “ Q. Had you known the defendant before the date

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of August 11th, sir? A. No, sir, I hadn’t. Q. Had you ever seen him to your knowledge since that time other than the time you picked him out in the show-up? A. No, I hadn’t.”