People v. Gilbert

DRAPER, P. J.

Defendant loitered in an Oakland market at closing time. When one customer opened the door to leave, one Swift entered. He drew a pistol and approached the counter. Defendant drew his gun and ordered employees and customers to a room at the rear. As Swift reached the counter, he began to beat the owner, one Eng, over the head with his gun, saying “You’re the man I wanted, . . . get in the back. ’ ’ Eng sought to ward off the blows to his head with one arm. With oriental stoicism and sense of propriety, he said: “This is ridiculous.” With his free hand, he grabbed a can of peas from a shelf near his head, swung it at Swift, and started for the door. Swift, his own sense of the fitness of things outraged, pursued Eng, saying “You can’t do this.” Eng reached the sidewalk and shouted for help. Some 8 feet behind him, Swift went through the door, closely followed by defendant, rapidly overcoming Swift’s head start. Both ran down the street with the unarmed Eng in hot pursuit. Without interrupting their flight, the two gunmen gestured with their revolvers in an attempt to stop Eng. They escaped.

The jury found defendant guilty of attempt to commit robbery (Pen. Code, §§ 211, 664) and assault with a deadly weapon (Pen. Code, §245). He appeals from the ensuing judgment.

Defendant argues that the evidence is insufficient to show an intent to take personal property. Unquestionably, such intent is an essential of the crime of attempted robbery. But intent is manifested by the circumstances connected with the offense (Pen. Code, §21). The presence of two armed strangers in a market shortly after closing time, their substantially simultaneous display of weapons, one pointing at the proprietor near the cash drawer and the other herding the remaining occupants to a rear room, is an unfortunately familiar situation readily suggesting intent to rob. The lack of some such phrase as “this is a stickup,” or “hand over your money,” does not bar the reasonable inference that the forceful taking of property is intended

(People

v.

Hite,

135 Cal. 76 [67 P. 57];

People

v.

Sanchez,

35 Cal.App.2d 316 [95 P.2d 462]). It is argued that the only fair inference is that an assault or battery upon Eng was intended. But there