People v. Schenk

NOURSE, P. J.

The defendant and one Avelino entered a bookmaking place operated in a second floor flat and robbed the proprietor and one of the patrons. The defendant used a forty-five automatic pistol in the hold-up; his companion used a thirty-two. The police were notified and surrounded the place while the hold-up was in progress. In attempting to escape through the kitchen they were stopped by a police officer, who was shot in the shoulder by the defendant Schenk using the forty-five gun. This defendant then forced a woman to precede him down the rear stairs, where they were met by other officers. One of these shot Schenk in the arm; he was arrested and surrendered the gun used in the shooting of the officer. Every element of the crimes charged was. proved to a moral certainty and without any substantial conflict. The defendant took the witness stand in his own behalf and testified that, as he was attempting to enter the flat by the rear door, he was met by another man who looked like him, was dressed in the same kind of suit, overcoat and cap, and carried the same kind of gun as the one he carried, and that this other man had engaged in the hold-up and had shot the police officer.

Upon this evidence the defendant was tried with a jury upon four informations—two charging robbery, one charging assault with intent to commit murder, and one charging the offense commonly referred to as that of an ex-convict carrying a concealed weapon. The defendant was also charged with prior convictions of grand larceny, assault to commit

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murder, and robbery, all of which were admitted. The jury found the defendant guilty on all four informations, and he appeals from the judgments.

The appellant complains that he was not given sufficient time to plead or to prepare his defense. The crimes were committed on October 20, 1936. The appellant was represented by the public defender until November 18, 1936, when he was called for plea. He then substituted private counsel whose request for a continuance was refused. His trial was set for November 25th. At that time his counsel asked for a continuance, and stated that he had a witness whose attendance he would like to secure. At the same time the co-defendant Avelino changed his plea to guilty. Appellant’s counsel then asked for a continuance on the ground that this change was a surprise to him. All motions were denied, and these are the only grounds argued for a reversal.