People v. Miller

WOOD (Fred B.), J.

Convicted on three counts charging robbery, violation of section 211, Penal Code, defendant appeals from the judgment and from the order denying his motion for a new trial.

He claims the evidence is insufficient to identify him as the person who committed the offense charged in Count One, robbery during the evening of August 9,1953, at a Lucky store situate at 2601 Telegraph Avenue, Oakland. A person who happened to be sitting in a car outside the store testified that he saw two men get out of a green 1950 Ford that had a dent in its right front door and go into the store. A few minutes later he saw them get back into the car and drive away. He memorized the license number on that car as it went past him. By means of that license number and the above description he later identified the ear, and upon it the police found a palm print which was identified as the defendant’s. Defendant argues that the lighting was insuf

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ficient to enable the witness to make the identification but that does not appear as a matter of law. The witness said that although it was dark the store lights were on and that he did see. It was a question of fact for determination by the jury. There were additional circumstances which also tended reasonably to connect defendant with the commission of the offense. There is not a sufficient basis for a reviewing court to disturb the verdict on the first count.

Count Three charged robbery, October 3, 1953, of a Safeway store at 40th and Telegraph in Oakland. Defendant was identified by two clerks who worked at that store and were present at the time of the robbery. Defendant questions the credibility of their testimony. One clerk said that the shorter of the two men who held up the store was about 5 feet 7 inches tall and wore a plaid suit. Asked on cross-examination if defendant is that man, the witness said he “looks like him,” and “I believe so, yes.” Again asked as to the height, he said the man was about 5-8, or 5-9; did not believe he could have been over 5 feet and 10 or 11 inches. The other clerk identified defendant as the shorter of the two men and said he was about 5 feet 10 inches and he wore an Eisenhower-type jacket—“I believe brown check,” a brown and white check. Here, says the defendant, are discrepancies in the testimony of these two witnesses so great as to render them unworthy of belief. We do not so view it, as a matter of law. Estimates of a man’s height are but approximate and the same jacket might honestly be described as a plaid by one man and a cheek by another. Also, when a witness says “I believe” or “I think so” he is not necessarily guessing.