People v. Tracy

California Court of Appeal Jan 12, 1937 No. Crim. 1916Published

Before: Tyler

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Holding. The court held that a trial court is not required to instruct the jury on an alibi defense absent a specific request, and that a defendant assisting in a robbery is guilty of robbery in the first degree regardless of their specific role.

Issues

Whether the trial court's failure to instruct the jury on the defense of alibi constitutes reversible error when no such instruction was requested.
Whether the evidence was sufficient to support a conviction for robbery in the first degree for a defendant who was seen rifling the cash register during the crime.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The record does not disclose any request made by appellant Tracy for an instruction upon the subject of alibi, and he may not now for the first time present the point.”

“This defendant was assisting in the perpetration of a robbery and was therefore guilty of robbery in the first degree.”

[445]

TYLER, P. J.

Appellants were jointly charged by information with the crime of robbery. Prior to the commission of the offense appellant Tracy had been convicted of the crime of burglary and had served a term in San Quentin. Upon arraignment he pleaded guilty to his prior conviction, but both defendants pleaded not guilty to the charge of robbery of which they were tried by a jury and convicted. Motion for a new trial was made and denied and they were sentenced to the state prison.

Appellant Tracy urges as ground for reversal the omission of the trial court to instruct the jury upon the defense of alibi which was interposed .on his behalf, and appellant Walsh contends that as to him there was no evidence to justify the jury’s verdict.

The facts and circumstances surrounding the commission of the crime charged show that one George Seferovich on March 28, 1936, had charge of a grocery store at Larkin and 0 ’Farrell Streets in San Francisco. Shortly before midnight of that day appellant Tracy entered the store, produced a gun and commanded Seferovich to put up his hands. Tracy forced him to go to the rear of the store, then taped his hands, searched him and took his money from his purse. At this time Seferovich heard some other person going behind the counter in the" front part of the store. Tracy then left Seferovich, telling him, with a warning, to stand where he was. At this time a neighbor, A. P. Martin, approached the door of the grocery and called Seferovich. He noticed appellant Walsh in the store, behind the counter, searching the drawers of the cash register. Walsh ■ asked Martin if he wanted a drink and upon being told that he did not, Walsh placed a revolver to Martin’s chest. A scuffle ensued—Martin grabbed Walsh’s gun and it was discharged. Police officers arrived and took the gun from Walsh and placed him in custody. Tracy was not present at this time but was subsequently apprehended and arrested at a hotel where he and Walsh had been stopping.

At the trial Tracy denied that he was implicated in the robbery and was in or near the grocery store on the night in question; he stated that shortly after 11 P. M. he met a girl friend and was with her in a certain saloon at the time of the robbery. This woman corroborated his alibi. One of the officers testified that as he started toward the grocery

People v. Tracy

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TYLER, P. J.

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