People v. Coley

SCHOTTKY, J. pro tem.—Defendant

and appellant was convicted in the Superior Court of Stanislaus County on two counts, one of robbery and the other of grand theft. No motion for a new trial was made by appellant and this appeal is from the judgment pronounced in accordance with the verdict of the jury.

Appellant makes only two points upon this appeal. The first is that the verdict and judgment are not sustained by the evidence; and the second is that the trial court erred in admitting a certain picture.

In support of his first point, appellant contends that the identification of defendant by Dan Spencer, the victim of the asserted crime, without which there was insufficient evidence to convict appellant with the crime, was so inherently improbable that it could not rationally be believed.

We shall, therefore, very briefly summarize the testimony of Spencer as it fairly appears in the record. Dan Spencer, who, under another name, had served a term in San Quentin, from which institution he had been released in 1929, operated a twenty-acre dairy farm south and west of the city of Turlock in Stanislaus County. On the morning of January 5, 1941, at about 5 a. m., while he was still in bed in the room in which he slept on said farm, although he was awake and his lamp was lighted, two men clad in yellow raincoats, not wearing hats and with white handkerchiefs as masks over their faces, pushed the door open and pounced on Spencer and commenced to choke and brutally beat him. They brought with them a lantern which came from the cow barn where Spencer’s milker had also been attacked and left tied up, which lantern they placed upon the floor of Spencer’s room. Spencer resisted vigorously and the unequal struggle lasted a half hour, according to Spencer, when the two men succeeded in subduing Spencer and on tying his hands and feet with strips made from Spencer’s blanket, took $150 belonging to Spencer, part of which was in a billfold in his short jacket and part of which was in a pocketbook at the head of the bed. The men then left and Spencer managed to get to his front porch and saw the men run into

[812]

the garage and get his automobile and drive out of the barnyard into the road and in the direction of the Crow’s Landing road. Just as they were going out of the gate he saw a hat blow out of the automobile and lie in the road, which hat, he later testified, was one he had previous to this date seen defendant wearing. Spencer testified that the man who held him while the other beat him was appellant, whom he had known well for more than ten years and who worked for him on several occasions, the last being for a period of twelve days in the month preceding, when appellant painted Spencer’s house and lived on the premises with Spencer and thus became familiar with the times Spencer received his cream checks and with the fact that Spencer kept no bank account but cashed the checks and used the cash to buy additional cows and feed. He testified, “Well, I knew him just as soon as he come into the room, I could tell him right away, just as soon as he opened the door, by his general build, his shoulders, the way he moved. I knew him right away.” Spencer testified further that appellant did not speak at any time during the attack but that the other man called appellant “Prank,” which was appellant’s nickname. He testified further that appellant had a tattoo mark on his left hand between his thumb and index finger and that he observed the tattoo mark during the attack.