People v. Addington

WOOD, J.

appellant Addington and his eo-defendant, Chefalo, were jointly charged in an information containing two counts with the crimes of robbery and burglary. Appel

[593]

lant was also charged with the prior conviction of a felony, which charge he admitted. Having been found guilty, appellant has appealed from the judgment of conviction and from the order denying his motion for a new trial.

Appellant’s contention that the evidence is insufficient to justify the conviction is without merit. The Surplus Commodity Food Stamp Store, 123 South McClay Street in San Fernando, was robbed by two armed men at about 4:10 p. m. on May 8, 1940. The robbers entered the store and forced seven employees and two customers into a small office at the rear of the store and then seized approximately $738 in cash and $76 in food stamps. The manager and one of the clerks testified that appellant was one of the two robbers. Appellant now attacks the identification by these two witnesses, pointing out that the manager gave testimony at the preliminary examination showing that he then had some doubt as to the identification of appellant, and also pointing out that the clerk testified that there was a possibility of his being mistaken in his identification of the defendants. In order to sustain a conviction it is not necessary that the identification of the defendant as the perpetrator of the crime be made positively or in a manner free from inconsistencies. It is the function of the jury to pass upon the strength or weakness of the identification and the uncertainties-of the witnesses in giving their testimony.

Appellant contends that the prosecuting attorney was guilty of misconduct when in his argument to the jury he referred to a witness for appellant, one Tunstall, as a relative of appellant. From the testimony of the appellant himself the jury could draw the inference that Tunstall was in fact his relative for in attempting to establish an alibi he testified that he had been at the home of his brother-in-law at Huntington Beach at approximately the time of the robbery. The witness Tunstall, in aid of the alibi, stated that appellant had been at his home in Huntington Beach. Moreover, although objection was made to the remarks which the prosecuting attorney had directed to the jury, no request was made to have the jury disregard them. There is no merit in appellant’s contention.