People v. Davis

FLEMING, J.

Carvrey M. Davis, Jr., was convicted of first degree robbery (Pen. Code, § 211), attempted robbery (Pen. Code, §§ 211, 664), and two counts of assault with a deadly weapon (Pen. Code, § 245). He appeals, urging insufficiency of the evidence to support the verdict.

The convictions resulted from two separate holdups. On May 7, 1964, a liquor and grocery store was held up by two gunmen. One entered the store about 10 p.m., laid a rifle on the counter, and commanded Charles Meehan, the clerk, and a woman assistant to get on the floor. The second then entered, emptied the cash register, and took a gun and four bottles of liquor. Meehan testified the store was brightly lit, he saw the second robber clearly from a distance of 18 inches, and Davis was the second robber. A witness who had gone to high school with Davis testified he saw him leaving the store at the time of the robbery. In defense, Davis’ wife testified she came home about 10 minutes after the time of the robbery and her husband, who was not fully dressed, let her into the house. In rebuttal, the investigating officer testified that Davis had said he had gone out to play pool on May 7 but couldn’t recall whom he had played with, what time he had gone out, or where he had been. Davis on the stand denied making these statements, but another police officer corroborated the testimony of the investigating officer.

On May 11, 1964, Welch’s grocery store was held up. Mr. and Mrs. Welch were preparing to close at 6:20 p.m. when they saw two men in the rear of the store. When the men were asked what they wanted, one said, “Get down or I will kill

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you.” When Mr. Welch did not get down, one of the men grabbed him and hit him with a gun, inflicting a scalp wound which required 10 to 12 stitches. He also struck Mrs. Welch and fired a shot which missed. The robbers then fled the scene. Both Mr. and Mrs. Welch testified that Davis was the man who had attacked them. Another witness, a young girl, positively identified Davis as one of the men who ran from the store. Defendant’s cellmate at the Pasadena city jail testified that defendant had told him about the holdup and admitted he “pulled a gig.”

For the defense, Davis and his sister and his mother testified that he had been watching television at his sister’s house at the time of the Welch holdup. Two other persons who had been near Welch’s grocery testified they did not think Davis was one of the men they saw running from the store. In rebuttal, the investigating officer testified Davis had said he was home all evening. Davis on the stand denied having made this statement, but another officer corroborated the investigating officer.