People v. Moore

NOURSE, P. J.

Defendants Súber, Hurd and Moore were charged with robbery under section 211, Penal Code. The information also charged Moore with two prior felony convictions. The cause was tried without a jury and judgment was given for second degree robbery and two prior convictions of felony as to defendant Moore. A motion for probation as to all three was denied.

Defendant Moore alone appeals from the judgment on the ground of insufficiency of the evidence to sustain the conviction, claiming there was no

evidence to

show that appellant participated in, aided, or abetted any robbery.

The events leading to the arrest and conviction of the defendants are as follows:

The robbery took place on October 22, 1952, about 3:30 a. m. when Frank Lopez was returning to Ms hotel located at 156 Third Street, San Francisco. As Lopez was going up the stairs, Ms friend who was partially crippled preceding him, three men approached Lopez. One of them, later identified as Hurd, pulled Mm down the stairs and then with his companion Súber proceeded to search Lopez, taking from him $7.00 in bills, which Lopez later identified by the manner in which they were folded. He had folded them separately the long way and then folded them over three times. Lopez

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testified he saw a knife lying in the hand of Súber but did not know whether it was open or not. While the robbery was taking place Moore was standing about 4 or 5 feet from them. According to the testimony of Lopez, “He [Moore] just stood at the steps. He did not do nothing. He did not say nothing; he just stood there. ’ ’ Lopez, after ascertaining that his crippled friend was getting up the stairs safely, ran out to watch in which direction his assailants went. He followed them and on Third Street hailed a patrol car, told the police officers he had been robbed, entered the car and directed the police officers in the direction he had seen the defendants going. The three men were located on Fourth and Mission Streets and identified by Lopez as the men who had robbed him. They were searched, and, according to the testimony of the two officers, the $7.00 and the knife were found on Moore. Lopez immediately identified the money by the way it was folded. Appellant points out that there was a conflict in the evidence as to which man was in possession of the stolen money. However at the trial the testimony of the two police officers that Moore was in possession of the stolen money and knife was certain and positive; that of Lopez, who thought the money was found on Súber, was not certain or positive. He testified when questioned as to the search of the three men by the police officers: “They took it away from—I believe it was this fellow with the red shirt [identified as Súber]. ’ ’ Later on cross-examination the question was asked: “Who had these seven bills at the time these men were arrested ? A. The fellow with the red shirt. Q. You testified a moment ago that it may have been two of them that had the bills. A. ... I don’t know if they did or not, but I know that was my seven dollars, that’s what I am getting at.” That Lopez could not have been sure which man was in possession of the stolen bills was brought out later in the following testimony: “Q. Tour best memory, then, as to who had them at the time they were arrested, was the man in the red shirt, Mr. Súber; is that your best memory? A. They both had bills, as far as that goes. I don’t know which one they got the folded bills from but they both had bills.” On the continuation of the cross-examination of Lopez in which he was questioned on the manner in which the defendants were searched the question was asked: “Did they go through the pockets of Mr. Súber? The Court: If you know. Were you watching the search ? A. No, I was not watching. I was not paying any particular attention to it.” As opposed to this