People v. McChesney

WARD, J.

An appeal from a judgment of conviction upon one of two counts, and from the order denying defendant’s motion for a new trial, upon a charge of robbery al

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leged to have been committed by defendant while armed with a deadly weapon. Defendant was acquitted upon the first count; upon the second, he was sentenced as an habitual criminal.

The facts relative to this second count are as follows: On December 15, 1938, at approximately twenty minutes past seven in the evening, complainant, who conducted a small market, was setting or installing the sliding doors in front of his establishment, preparatory to closing for the night, when defendant came from behind, placed his left arm partially around complainant, and with a gun at his ribs, informed him that it was a " hold-up ’ ’ and asked for his money. Upon receiving a wallet containing two five dollar bills in United States currency, defendant marched the complainant, at the point of a gun around the store, down to the end of a fence, which was about twenty-five or thirty feet below the market, to where an automobile was parked. There was a man in the car, who urged defendant to hurry, but before they drove away complainant had obtained the last four numbers of their automobile license—9190.

Appellant attacks the sufficiency of the 'evidence, primarily upon the theory that the complainant was impeached upon cross-examination; also that there was no element of force or fear used toward the complainant when he parted with his property. This last contention may be first considered. Relative to the time of the hold-up and the incident of turning the wallet over to appellant, complainant testified that he was afraid of the man and of the gun. The evidence shows that he was forced, through fear of immediate and unlawful injury to his person or property, to turn over his money, and that every element of the crime of robbery was established. (Pen. Code, secs. 211, 211a, 212.)

On cross-examination the complainant admitted that immediately after the hold-up, he had given the last four numbers of the automobile license to the police as 9290 instead of 9190. Subsequent to the robbery appellant was found driving a car under license number 8C9190, on the floor of which a loaded gun was found. It was the duty of the jury to pass upon the credibility of the witnesses, taking into consideration their manner and the character of their testimony.