People v. Farber

TYLER, P. J.

Defendant was charged with the crime of robbery. He was tried and convicted, the jury finding him guilty of robbery in the first degree. Motions for a new trial in arrest of judgment and for probation were made and denied and he was sentenced to San Quentin. The motion for a new trial was made on the grounds of newly discovered evidence and that the judgment was not pronounced within the statutory period. From the final judgment and the order denying his motion for a new trial this appeal is taken.

The ease arose out of the robbery of a Standard Oil service service station employee. This employee was a witness at the trial and he testified as to being held up at the point of a gun and robbed. Another witness offered on behalf of the prosecution was an inspector of the police department, who testified that appellant had made a written statement of the robbery in which he claimed one Melvin Gunderson had committed the crime. In his statement he admitted that he had been approached by Gunderson and was asked to take him down town as he wanted to steal an automobile, and that he had complied with the request; that Gunderson failed to carry out his plan and appellant later undertook to drive him home; that when passing the Standard Oil station at Alemany and Bayshore Boulevard he was requested by Gunderson to stop as he intended to hold up the station; that in compliance with Gunderson’s request he did so, whereupon Gunderson held up the station and obtained approximately twenty-seven dollars. Appellant took the stand and testified as to his activities with Gunderson on the night of the robbery. He stated in substance that he was about to leave his office on San Bruno Avenue to go down town for dinner when he was approached by Gunderson and asked if he might accompany him as he wanted to steal a car; that Gunderson failed in his plan and was returning with appellant to his.home when they passed the station in question. Gunderson told appellant to stop his machine, stating that he wanted to rob the station. This

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appellant did. Gunderson then left appellant’s car and returned in two or three minutes; later he handed him some silver which he stated to be one-half of the proceeds of the robbery. Appellant admitted at the trial that the written statement was true.

In support of his motion for a new trial upon the ground of newly discovered evidence, an affidavit was presented which was made by defendant’s attorney to the effect that after the trial he had visited San Quentin and interviewed the accomplice of defendant and at that time the accomplice stated that if he had been called as a witness he would have testified that appellant had no information or knowledge of the intended robbery prior to its perpetration; that he, the accomplice, had not contemplated the perpetration of the act until the moment that he passed the service station, and did not then make known his purpose to appellant ; that no information on the matter was given to appellant until they drove away, and appellant in no way had aided or assisted in the perpetration of the robbery. Under these circumstances there was no error in refusing the motion for a new trial based on such an affidavit. Defendant, according to his own statement, knew of these alleged facts at the time of the trial, the only reason given for not using them being that he thought his accomplice was unfriendly and would not tell the truth. This does not constitute new evidence within the meaning of the statute.