People v. Fong Shee Shung

WHITE, J.

Following his conviction after a trial before a jury on three counts of robbery, defendant prosecutes this appeal from the order denying his motion for a new trial.

Epitomizing the facts as they appear in the record, it was testified at the trial that about 1 o’clock on the morning ■ of Monday, June 17, 1940, a Chinese restaurant located at 11916 Ventura Boulevard in the county of Los Angeles was held up and robbed by three men armed with guns, who bound

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the proprietor, William Wong, his wife and brother, and placed them in a rest room. One of the robbers, identified at the trial as the appellant, then at the point of a pistol conn manded the victims to remain quiet. Certain money and other personal property was taken from the persons of the victims and from the premises. At the trial appellant was identified by Mrs. Wong and Paul L. Wong, while William Wong, who also identified appellant as one of the perpetrators of the robbery, testified that he had seen him in several other restaurants prior to the night of the holdup. On the occasion of the robbery appellant wore no mask and his face was visible to the victims. In the course of the robbery appellant took the wallet of Paul L. Wong, which contained a social security card and a chauffeur’s license in the name of the latter. Six different witnesses were produced by the prosecution who identified the appellant as having used these documents while impersonating Paul L. Wong in order to cash fictitious checks to which he had forged Mr. Wong’s name as an endorser.

Appellant took the witness stand in his own defense. Pie denied participation in the robbery or that he had ever been in the restaurant prior to his arrest. Pie claimed that he was sleeping in a Chinese laundry on West Sixth Street in the city of Los Angeles on the Sunday night and Monday morning in question; that he went to sleep about 11:30 and did not arise until 6 in the morning. He admitted possession of the social security card and chauffeur’s license of Mr. Wong, as well as the illegal use thereof, but claimed he found them in the rest room of a restaurant.

Upon this appeal appellant challenges only the correctness of the trial court's ruling in denying his motion for a new trial which was based solely upon the ground of newly discovered evidence. (Pen. Code, sec. 1181, subd. 7.) In support of this motion defendant tendered the trial court two affidavits in which the affiants deposed that they both were present at the home of one of them on the night the robberies were committed, and that appellant was also in that home at the hour when the victims testified they were held up. Both of these affiants further swore that they did not advise appellant of such knowledge on their part because of the receipt by them of an anonymous telephone call warning them not to testify for the defendant “upon penalty of incurring