People v. Deal

MOORE, P. J.

Defendant appeals from a judgment of conviction of the crime of robbery in the second degree with a prior conviction of petty theft. The grounds of appeal are : (1) The insufficiency of the evidence, and (2) error in instructing the jury with respect to the law of reasonable doubt.

On April 29, 1940, about 10:30 o’clock P. M., one Tony Guisto entered the cafe at 511 South Main Street, in Los

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Angeles, seated himself at the counter, and while consuming his food and drink, defendant approached and occupied the chair next to him. The two engaged in conversation in the course of which Quisto purchased a bottle of beer for defendant. They sat and visited together for twenty minutes. Defendant suggested that he would get his own wife for Quisto and another girl for himself. The “Wife” at once joined them and about 11 P. M. the trio sauntered forth, walked “three or four doors and finally picked up another girl” who carried a bouquet. The girl with the flowers professed to know of a place to drink and joined defendant in leading the party south to 'Sixth Street, thence east toward Los Angeles Street. When they reached a point opposite the Greyhound station, Quisto smelled the flowers and immediately “saw stars”. He reposed in slumberland about twenty minutes. On regaining consciousness at 11:20 o ’clock, lying on the sidewalk, he discovered that his money, in the sum of $35, his pen and pencil had been removed from his pockets and that “the inside of his jaw was cut through to his teeth”. He promptly reported the crime to the police to whom he stated that his assailant had a bandage on his right hand. A week later Quisto found defendant in the same cafe, his hand was bandaged in the same manner as on the night of April 29th but it was his left hand. Quisto promptly caused the arrest of defendant who admitted to the officer he was at the cafe on the evening of the 29th of April but denied he had robbed or even seen Quisto at that place.

The foregoing is the substance of Quisto’s testimony. It contained no inherent improbabilities or glaring inconsistencies. Quisto was neither eager nor unfriendly. In fact, he had been brought to court pursuant to a bench warrant after he had ignored a subpoena. The jury must have believed that Quisto’s convivial communion with defendant and their plans for a party with the two women enabled Quisto to recognize his assailant. Surely the time they spent together, each looking into the face of the other, afforded the victim ample opportunity to gain an impression of the features, frame and figure of his newly found companion that would last a week. Lack of aptness in the use of verbiage and obtuseness of expression in assigning reasons for identifying a person do not defeat the honest opinion of a witness. Following the