People v. Boothe

[741]

FOURT, J.

—This is an appeal from a judgment of conviction of robbery.

In an information filed in Los Angeles on April 20, 1965, defendant was charged with robbing Walter McCoy and Langendorf Bakery of about $123 on or about March 8, 1965. Further it was charged that defendant at the time of the commission of the offense was armed with a deadly weapon namely, a gun. Defendant pleaded not guilty. In a jury trial defendant was found guilty of robbery in the second degree and further it was found that he was not armed at the time of the commission of the offense. Defendant was sentenced to the state prison on August 4, 1965. A division of this court granted defendant’s application to file a notice of appeal on May 25, 1967, and such notice of appeal was filed on June 8, 1967.

A résumé of some of the facts is as follows: Walter McCoy, a driver-salesman for Langendorf Bakery, at about 3 p.m. on May 8, 1965, made a delivery and pick-up stop at Bill’s Food Market in Compton. After having filled an order for merchandise, McCoy collected about $25 from Mrs. Wong, the wife of the owner of the store. McCoy put the money in his pants pocket and went outside and into his parked delivery truck. He chatted very briefly with a competitor bakery truck driver and then turned and saw defendant standing at the door of his truck. Although the day was a warm one, defendant was dressed in a three-quarter length light-colored trench coat, tight-fitting trousers and a narrow-brimmed hat. Defendant said to McCoy, “Don’t move or I’ll shoot. And if you think that I won’t shoot, why, move and find out.” While making the statement defendant simulated the holding of a gun, his right hand being concealed under the trench coat. McCoy thought that defendant was armed with a gun. Defendant then said to McCoy, “Well, now, don’t move fast, but take the money out of your pocket and deposit it on the floor of the truck, and then go back where you were and I’ll get the money from there.” McCoy then placed about $123 in currency from his pants pocket on the floor of the truck. Defendant picked up the money and left.

Mrs. Wong testified that she had seen defendant in the store on several other occasions, that he had been in on that morning (May 8, 1965), and at the time just prior to the robbery was exchanging a purchase which he had made in the morning, and that McCoy was then placing bread in the racks at the store; that defendant was near at hand when she paid