People v. Edwards

BRAY, P. J.

Defendant appeals from judgment (after jury verdict) of conviction of first degree robbery (violation of Pen. Code, § 211) and purports to appeal from the order denying new trial.

1

Question Presented

Should the trial court on its own motion have instructed on (a) identification, (b) alibi?

Record

Shortly past midnight on February 9, 1962, Mrs. Kathryn Banchero, a clerk in a liquor store in Emeryville, was alone in the store. Defendant entered and asked for a quart of ale. Mrs. Banchero reached into the refrigerator for the ale and as she turned around, defendant with his hand in his pocket stated “This is a stick up.” Shortly thereafter he produced from his pocket an 8-ineh boning knife which he held touching her clothing, and said "Open the register before I cut you

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up.” Mrs. Banchero opened the cash register and put approximately $65 into a paper bag, which she gave defendant. Defendant told her to hurry up or else he would cut her up. When she said that she had no more money, he asked for a fifth of Scotch. As she went for the Scotch, which was near the door, defendant went behind the counter. Grabbing a bottle of Scotch Mrs. Banchero ran out the door and yelled “I’m being held up.” Looking back she saw defendant take from under the counter a bag containing $97 in coins. A Cadillac drove up, stopping about 25 feet south of the store. Defendant ran out, jumped in the car, and the driver drove it away.

About 5 a.m. Mrs. Banchero viewed two suspects at the police station. She said that neither of them was the person who robbed her. About 12:30 p.m. the same day she viewed defendant along with the same two suspects whom she had seen in the morning. When asked "Which one is it f ” she identified defendant.

At the trial defendant denied being in any way implicated in the crime and claimed that he spent the night part time in the apartment of Melba Moody and part time in his apartment across the hall. Melba testified that he spent the entire night sitting up with her in her room, as she was not feeling well. A waitress at Maggie’s Barbecue testified that she saw defendant there about 2:30-2:45 the morning of the robbery.