People v. McClain

McCOMB, J.

Prom judgments of guilty of (1) robbery, and (2) attempted robbery, after trial before a jury

[400]

defendant appeals. There is also an appeal from the order denying his motions for a new trial.

Over the objection of defendant, the trial court upon motion of the district attorney consolidated for the purpose of trial, with the information containing the counts upon which defendant was convicted (No. 85902), another information (No. 88803) charging defendant with robbery at a time and place different from that alleged in either count contained in the information upon which defendant was convicted and from which judgments of conviction he has appealed.

Count I, Attempted Robbery

December 5, 1940, Mr. Maclsaac, his wife, and Mr. Leach in their automobile drove up in front of an apartment house in South Pasadena. Mrs. Maclsaac and Mr. Leach started into the apartment house while Mr. Maclsaac remained in the car to listen to a news broadcast. He had been listening for a few minutes when the door on the right side of his automobile was opened and he saw a man facing him with a gun pointing in his direction. At about the same time the door on the left side of his ear was opened and another man told him to move over and to look like nothing had happened. The man on the right side said that they were going for a ride and that if Mr. Maclsaac behaved himself he would not be hurt. This same man started the motor and shut off the radio.

At about this time Mrs. Maclsaac and Mr. Leach started to come out of the apartment house. At the same time the man on Mr. Maclsaac’s right jumped out of the car, grabbed Mrs. Maclsaac by the arm, pointed the gun which he held at Mr. Leach, and brought them toward the automobile. As he was attempting to open the door to the rear seat, Mrs. Maclsaac screamed and ran into the street. The man in the front seat with Mr. Maclsaac started to drive the car away and as he put both hands on the wheel Mr. Maclsaac grappled with him. A tussle ensued. The man jumped out of the car and escaped. Later Mr. Maclsaac identified the defendant as the man with whom he had struggled in the car.

Count II, Robbery

December 5, 1940, Officer Allen learning of the attempted robbery of the Maclsaaes and obtaining a description of the suspects, started to look for them. . He found a 1938 Ford Y-8 sedan that had bipod on the seat, The keys were in the