People v. Walker

DUNIWAY, J.

Appeal from a judgment of conviction of robbery in the second degree (Pen. Code, §§ 211, 211a). Appellant claims error on the following grounds: (1) insufficiency of the evidence to support the verdict; (2) that a police officer who interviewed defendant should not have been permitted to read to the jury his memorandum of what defendant said; (3) prejudicial misconduct of the district attorney; (4) that denial of probation was an abuse of discretion. His contentions are without merit.

1.

The evidence was sufficient.

It was agreed by the victim and appellant in their testimony and in appellant’s subsequent statement to the officer that during the course of a ride in a car which appellant was driving, $126 of the victim’s money found its way from her possession into the possession of appellant. There was a direct conflict in the testimony as to whether the victim voluntarily handed it to him as a loan, or he took it by force. The jury resolved that question against appellant. It is not our function to upset that finding.

Counsel asserts that the victim’s testimony “insults the principles of credibility,” and that her testimony is apparently so improbable or false as to amount to no evidence at all, citing

People

v.

Antunes,

28 Cal.App. 740 [153 P. 963], and

People

v.

Lewis,

18 Cal.App. 359 [123 P. 232]. Neither ease supports

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his position; on the contrary, in both cases the court applies the ordinary rule: “ ‘If the evidence which bears against the defendant, considered by itself, and without regard to conflicting evidence, is sufficient to support the verdict, the question ceases to be one of law—of which alone this court has jurisdiction—and becomes one of fact upon which the decision of the jury and the trial court is final and conclusive. ’ ”