People v. Payne

Opinion

LILLIE, J.

An information charged defendant with robbery (Pen. Code, § 211) and alleged that he was armed with a deadly weapon, an automatic gun, at the time of the commission of the offense and with a concealed deadly weapon (automatic gun) at the time of arrest. He was found guilty of first degree robbery and not to be armed at the time of the commission of the offense but armed at the time of arrest. He appeals from the judgment.

Around noon on September 12, 1967, a salesgirl at Hartfield’s store brought defendant to Billy Luck, credit manager, to make a credit application. Luck gave him an application; they stood face to face across the counter from each other. Defendant did not complete the application but asked Luck to take a look at some coats he wanted to purchase at the store’s cash desk located in the center of the floor; they walked out on the floor. Luck noticed defendant’s hand placed inside a brown paper bag resting on the cash desk; the bag made a thud on the counter as defendant said, “I want you to go back there and get the money” and shoved the bag with his hand in it over the counter; he handed a second bag to Luck. At first Luck thought it might be a joke but after defendant said, “Did you hear me?” and repeated his statement, and a cashier said, “Come on, Mr. Luck, get the money. We are going to get robbed.” he complied. Luck walked to the safe about 10 feet away. The cashier saw defendant take a shiny object off the cash desk and place it in his pocket; the object with which defendant had been fiddling flashed when it was taken from the bag. Luck then returned with the money in the paper bag; it consisted of singles, rolls of coins and envelopes containing money and deposit slips bearing the name “Hartfield Store,” totaling $3,000. Defendant turned to the door, warned them not to call police and left.

The store detective, Oscar Dunbar, was next door drinking a coke; Mrs. Jordan, a window trimmer, came in and told him something was happening at Hartfield’s; in front of the store he found Luck who told him that “the man is going around the corner that just robbed the store” and Mrs. Jordan yelled, “He is just going around the corner. He is just going around the

[364]

corner, the man with the two bags.” He ran to the corner and saw defendant, six to eight feet away, carrying two brown paper bags “walking fast” to the parking lot behind the store; defendant was the only person on the street. Told defendant had a gun, Dunbar followed him about 50 yards into the parking lot and when he was in the back of the lot, pointed his weapon at defendant, yelled, “Police Officers. Halt,” and ordered him to raise his hands slowly, turn, extend his hands in front and give the bag to the store manager who had just arrived. Dunbar’s partner came and together they frisked defendant; in defendant’s right trouser pocket he found a loaded automatic gun. Defendant was escorted back to the store and the police were called. Upstairs Dunbar examined the contents of the bags and found them to contain money, checks and bank receipts which bore the name “Hartfield Store” signed by store employees.