People v. Sutton

BRAY, J.

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Defendant appeals from judgment of conviction after jury verdict, of violation of section 211, Penal Code (armed robbery).

Sole Question Presented

Should the trial court, of its own motion, have instructed the jury to disregard the fact of the incarceration of defendant’s alibi witness?

Record

Defendant was charged with three counts of armed robbery. Count 1, the robbery of the Esquire Bar on March 24, 1963;

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Count 2, the robbery of the adjoining liquor store the same evening; and Count 3, the robbery of Moore’s Pharmacy on April 1, 1963.

1

The jury found defendant not guilty under Counts 1 and 2 but guilty under Count 3. Defendant apappeals from that conviction contending only that the court should have given,

sua sponte,

an instruction as hereinafter set forth.

The Evidence

In view of defendant’s acquittal under Counts 1 and 2, the evidence adduced concerning those counts need not be detailed. The defense under each of those counts, other than defendant’s denial that he participated in the robberies, as he denied under Count 3, was an alibi. To establish his alibi on the first two counts, the defense called two confessed felons, who admitted participating in the respective robberies, but said that their third accomplice was one other than defendant. On cross-examination in impeachment of these witnesses, the prosecution brought out the fact that both of these witnesses had been convicted of felonies and were presently in prison. A Mrs. Betty Kirk testified that at the time of the two robberies defendant was with her. The jury acquitted defendant of the robberies charged in those two counts.

The evidence under the third count follows: At approximately 5 p. m. on April 1, 1963, Donald S. Moore, the proprietor of Moore’s Pharmacy, 11275 San Pablo Avenue, El Cerrito, California, was discussing an order for Playtex rubber goods with a salesman, Richard Tuttle, when defendant and another man came into the store. Also in the store at this time were Mr. Moore’s two clerks, Helen Prien and Dorothy Kinzel. Defendant walked up to Mrs. Kinzel and discussed the purchase of a pair of sun glasses. The other man walked around the store and then stepped behind the counter where the cash register was located. Defendant and the other man thereupon drew pistols and stated, “This is a holdup. . . .”