People v. Smith

DEVINE, J.

Appellant, having been convicted of robbery, makes several points which can be considered briefly with whatever statement of facts is required under the separate points, and without recitation of the long story related by the witnesses. Appellant’s contentions and our decisions are:

1. That the information did not state that the robbery was committed with a deadly weapon, but the verdict was of first degree. The information was sufficient and it was for the jury to determine the degree.

(People

v.

Kent,

90 Cal.App.2d 77 [202 P.2d 376].)

2. That the evidence is insufficient to show use of a deadly weapon. The victim testified that defendant stuck a knife on his neck, that he did not see it, but felt the point. There was no objection to the answer that the object was a knife, that it was a conclusion, if conclusion it really was. The knife could be found to be a deadly weapon, without regard to its size, from the manner of its use.

(People

v.

Bennett,

208 Cal.App.2d 317, 320 [25 Cal.Rptr. 257];

People

v.

Raleigh,

128 Cal.App. 105,108-109 [16 P.2d 752].)

3. That evidence was insufficient to show that appellant was the one who took the victim’s wallet. There is direct testimony by the victim that appellant took his wallet; and a

[433]

later statement that he did not remember who took what may-well have referred only to other items then being discussed.

4. That there is no evidence of asportation of the wallet because it was not found, either on appellant’s person when he was arrested, or anywhere else. It is sufficient asportation if the wallet were removed, as the victim testified, from his person.