People v. Spahn

THOMPSON (GORDON), J.,

pro term.

John Spahn and one Raymond Peterson were jointly charged in an information filed by the district attorney of San Bernardino County, with the crime of robbing one C. H. Oliver of the sum of $15, and with perpetrating said robbery by means of a deadly weapon, to wit, a pistol. A second information filed charged both defendants with the crime of burglary. At the trial both defendants were acquitted of the burglary charge and Peterson was convicted of robbery with a firearm. The jury disagreed as to the codefendant Spahn. He was later retried . on the robbery charge and the jury returned a verdict finding him guilty as charged. Defendant Spahn has appealed from the judgment and the order denying his motion for a new trial.

Appellant urges: (1) Insufficiency of the evidence to justify the conviction; (2) error committed by the court in the reception of evidence; and (3) error of the court in refusing to give four of appellant’s requested instructions.

The evidence discloses a meeting of the appellant and Peterson in the city of Los Angeles. Both started for Yermo, California, in a Chevrolet automobile owned by appellant. During this trip they went through Victorville, California, but did not stop. Approximately 5 o’clock in the evening they stopped at a place known as Miller’s Garage. Peterson

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alighted from the automobile and broke into the garage. As the proprietor arrived, Peterson dropped the articles he had taken and went to the automobile, which was driven away by appellant. At the first trial, a part of which record was read in evidence, appellant testified that he did not see Peterson break into the garage, as he had turned his head. He admitted that the only reason he turned his head was so he could not see Peterson break into the garage.

Later in the evening both Peterson and appellant drove back to Victorville where appellant parked his automobile immediately across the street from the liquor store known as the “Barrel House”. Peterson entered the Barrel House and at the point of a gun robbed the proprietor of the sum of $15. There is no conflict in the evidence as to appellant and Peterson being together on the night of the robbery. There is, however, some conflict as to where the automobile was parked. Appellant testified the automobile was some distance away from the Barrel House where Peterson went to get some cigarettes. The proprietor, however, testified that the automobile was parked across the street.