People v. Howard

BARNARD, P. J.

The defendant was charged with robbery alleged to have been committed on January 1, 1955, it being also alleged that he was at that time armed with a deadly weapon, a .38 caliber nickel-plated revolver. In a second count he was charged with the crime of possession of a firearm by one previously convicted of a felony, in violation of section 12021 of the Penal Code. He' was also charged with two prior convictions. He pleaded not guilty as to both counts of the information. He first admitted the prior convictions, but on the advice of the court that he first consult a lawyer he denied them. A jury found him guilty on both counts, and also found that the allegations of the two prior convictions were true. With respect to the first count, the jury fixed the degree as robbery in the first degree, and also found that at the time that crime was committed the defendant

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was armed with a deadly weapon. The defendant has appealed from the judgment and “from the order denying defendant’s motion for a new trial.” Prom the record, it appears that no such motion was made.

A service station attendant testified that in the early morning hours of January 1, 1955, the defendant came into the station, “put a gun” on him, and demanded that he open the till; that the pistol was, cocked and he could see the bullets in it; that the defendant reached over and took the money out of the till; and that the defendant then made him lie down saying “Give me a chance to get away.” There was evidence that about $160 was taken on this occasion.

Early on the morning of January 12, 1955, two police officers saw the defendant walking on the street in San Diego. They questioned him and a search revealed a nickel-plated revolver, which was introduced in evidence. It was found in the defendant’s pants pocket and was fully loaded. They took the defendant over to this service station, and the attendant there identified the defendant as the man who had robbed him on January 1, and identified the gun as the one that had been used on that occasion. He also identified a suede jacket then worn by the defendant as similar to the one the defendant was wearing on the other occasion. At the trial the service station attendant again identified the defendant, the gun, and the jacket, in similar manner. Testimony was also received, including certified copies, concerning the prior convictions. The defendant took the stand and admitted the prior convictions. He also admitted the possession of the weapon, as charged in Count II, but claimed that he would not have had it if he “knew there was a law governing it.” While on the stand he said nothing of the charge of robbery contained in Count I, and did not deny any of the evidence in that connection.