People v. Finnegan

California Court of Appeal May 16, 1961 No. Crim. 3837Published

Before: Bray

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Holding. The court held that an indictment may be amended to include a prior conviction, that the evidence was sufficient to support a robbery conviction despite witness equivocation, and that the prosecution's impeachment regarding the nature of a prior felony was permissible.

Issues

Whether an indictment may be amended to charge a prior conviction after the initial plea.
Whether the evidence was sufficient to establish robbery where the victim complied due to fear.
Whether the prosecution may impeach a defendant by asking about the nature of a prior felony conviction.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Section 969a and section 1009 are broad enough to permit the indictment to be amended to charge a prior conviction, even though the grand jury knew of the prior but did not charge it in the indictment.”

“The rule is that a defendant may be impeached by showing not only the existence of a prior felony conviction, but also the nature of such conviction although the details and circumstances comprising the prior offense are not a proper subject of inquiry.”

BRAT, P. J

Defendant appeals from a judgment of conviction, after jury verdict, of, first count, armed robbery,

[154]

second count, felon in possession of a pistol.

A prior conviction was found to be true.

Questions Pbesented

1. Alleged error in amending indictment to charge prior conviction.

2. Sufficiency of evidence.

3. Alleged misconduct of prosecutor.

4. Alleged error in striking testimony.

Evidence

At approximately 8:20 p. m. a man entered a doughnut shop in San Francisco, sat at the counter and ordered a cup of coffee. The counter clerk, Matson, turned to pour the coffee, and observed a gun under the man’s coat. The man said, “I guess you know what this is,” and motioned to the “cooler” behind Matson, stating, “Give me everything in the cooler.” Matson hesitated. The man said, “You know what I mean. Get it out. ’ ’ Matson replied, ‘1 There is nothing in there. ... I will open it up and show you ...” Matson who was then at the cash register removed the money from it, handing the man a $5.00 bill and five or six $1.00 bills. The man then left.

Officer McGoran was on patrol about 2 or

2Yz

miles from the doughnut shop. Shortly, he received a radio call telling of the robbery and giving a description of the robber. McGoran proceeded to the northbound freeway and observed two men in a green 1958 Dodge going north. He followed the vehicle for a short while and observed that the passenger therein matched the description given him. He stopped the ear and observed defendant lean forward in a crouched position and then straighten up. When McGoran opened the car door, he saw a gun on the right side of the floor of the car near defendant’s feet. The gun was fully loaded. Searching both the driver, one Kocher, and defendant, he found a $5.00 bill in Kocher’s vest pocket; five $1.00 bills were found on defendant. Another $1.00 bill was found on the floor of the car next to the gun.

People v. Finnegan

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BRAT, P. J

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