People v. Gibbons

[29]

BARNARD, P. J.

The defendant was charged with the crime of robbery, found guilty by a jury, and given a prison sentence. He has appealed from the judgment and from the order denying his motion for a new trial, contending that the evidence is insufficient, with respect to the identity of the robber, to support the verdict and judgment.

A bartender employed at the Eagles Hall in San Diego was the only witness who testified concerning the actual commission of the robbery. He testified that he started to close the bar at 11:45 p. m. on August 28, 1947; that a few minutes later, as he was taking the money from the second of two cash registers, a man came up behind him, poked something in his back and told him it was a

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stick-up, ’ ’ and took a money sack containing about $70 from his hand; that the man ran around the bar and out through the front door; that he got just a glimpse of the man’s face at the time of the holdup; that he “got a better look at him when he was leaving”; that he did not move until after the man was gone; and that he then went back to the kitchen and called the police. After stating that he believed that he could identify the person who robbed him he testified very positively, and several times, that the appellant was not that man. When asked to describe the man who robbed him he replied: “He wasn’t as big as this boy and much more darker complected.” He further testified that he did not remember seeing the appellant seated at the bar between 11:10 and closing time that night.

Two janitors, who were moving an icebox from the barroom to the kitchen about 11:15, also testified. One of them testified that while they were thus engaged the bartender came into the kitchen; that he was rather excited; that he told them that a man had gotten all of his money; that the witness tried to figure out what he was saying; that they finally realized that he had been held up; that they came out into the bar and saw a man just ready to open the front door; that they followed him and as they went out the front door and into the street they saw this man just turning the corner at the end of the block; that they followed at first on foot and then in the witness’ car; that the man they were following did not run at any time; that a few blocks away the man hailed a taxi and got in; that they followed the taxi for several blocks; that the taxi stopped and the man got out while they were half a block behind; that he was reasonably sure that the man who got out of the taxi was the same man he had seen get into it;