People v. Martell

SHINN, P. J.

Defendant Joe Milton Kartell and Charles Bristow Matthews were charged in an information with robbery and two counts of attempted robbery. They were further charged in an amended information, by two additional counts, with assault with a deadly weapon.

Both defendants pleaded not guilty. In a jury trial in which they were represented by private counsel they were found guilty of two counts of attempted armed robbery in the first degree, and not guilty of the robbery and assault with deadly weapon counts.

The motion for a new trial and application for probation of Kartell were denied. He was sentenced to the state prison. He appeals from the “sentence” (judgment), and from an order denying probation.

[197]

Martell’s first contention is that the evidence was insufficient to sustain his conviction. We find no merit in this contention.

Two elements are essential to an attempted crime, namely, a specific intent and an ineffectual overt act directed at its consummation. The intent of any person at the time of his attempt to offend the state is a question of fact. It may be inferred from the circumstances in evidence.

(People

v. Gibson, 94 Cal.App.2d 468, 471 [210 P.2d 747].)

There was evidence that defendant was one of three men identified as having approached a parked car containing three persons at 2 a. m. on May 13, 1960, on 31st and St. Andrews Place in Los Angeles. They demanded that the occupants open the doors of the ear. One of the men said something about the occupants giving the men their money. Both of defendant’s companions were armed. When Mrs. King, the driver, attempted to start the ear, one of Martell’s companions smashed a window of the car with the butt end of his pistol. After Mrs. King started the car and attempted to drive away, the defendant and his companions ran to a Studebaker car parked across the street.

The test on appeal to determine the sufficiency of the evidence against defendant is whether in light of every fact reasonably deducible from the evidence, tending to support the judgment, there appears sufficient evidence to justify the conclusion reached in the court below.