People v. Wyback

McMURRAY, J. pro tem.

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A jury having found defendant guilty of a felony, violation of section 211 of the Penal Code, a robbery by means of force and fear on the person of one Nagel, and defendant having admitted five prior felony convictions, he was adjudged to be a habitual criminal at the time sentence was pronounced. Defendant appeals from the judgment.

On January 19, 1960, Nagel was employed as a clerk in a

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liquor store when shortly before 8 p. m. a gray-haired man entered the brightly lighted store. The man was dressed in brown pants and a lumberjack jacket over a shirt. He kept furtively looking around and acted nervous. Nagel looked at the man more carefully than he would usually look at a customer because of this behavior. Plis observation led him to believe that the man was 48 or 50 years old and weighed about 180 or 190 pounds'. The man had several little holes in his face and small, slanted eyes.

The man approached the counter where he was not more than 5 feet away from Nagel and requested a bottle of Vodka. Upon being asked what kind of Vodka, he replied: “Any kind.” Nagel removed a bottle of Vodka from the shelf next to where he was standing and set the bottle on the counter. The man hollered : ‘1 Put it in a sack. ’ ’ Nagel did so and said : “$4.32, please.” The man who now appeared very nervous opened his coat and showed Nagel a long white-handled gun protruding from the waistband of his trousers and said: 11 This is a hold up. ” Nagel said: ‘1 Help yourself ’ ’ and began to move toward the end of the counter. The robber helped himself to $133 from the open cash register, left the store and instructed Nagel not to follow him. At this time Nagel noticed that the robber’s teeth were black and broken. Nagel went outside and saw the robber run across the street and proceed easterly. Thereafter, he reported the robbery to the police. At about the same time, and near the place where the robbery took place, a witness noticed a green Oldsmobile convertible parked by the driveway in front of the house next door from which a man left, walked toward the direction of the liquor store and later returned-to the car.

About a month later a police officer showed eight or ten photographs of different Caucasian persons to Nagel, who, without any hesitation, picked out and identified the appellant’s picture as that of the robber. Thereafter, the same police officer talked to the appellant at the police station. Appellant admitted that he had been in Los Angeles County during the month of January 1960 but was vague as to dates. He stated that about the 9th or 10th of January 1960 he had been to the Department of Employment in Los Angeles where he met two men known to him only as Phil and Ed. Although these two men had a 1955 green four-door Oldsmobile, appellant did not know whether it had out-of-state license plates; the witness who noted the convertible Oldsmobile stated it had such plates.