People v. Derwin

CASHIN, J.

Defendants were jointly charged by indictment with the crime of robbery. A jury returned a verdict against both and determined the crime to be robbery of the second degree. Their motions for a new trial and in arrest of judgment were denied, and they appeal from the order denying a new trial and from the judgment.

The grounds urged for reversal are that the court erred in giving and in its refusal to give certain instructions to the jury.

It was shown by the testimony that Robert Weir, the complaining witness, at about 1:30 o’clock A. M. of December 25, 1924, was walking in a northerly direction along Valencia Street in San Francisco when, upon reaching a doorway thereon in which two persons were standing, he stumbled over the foot of one of them, whereupon he was attacked by both, was beaten and after a struggle his watch, of the value of $50, váth certain letters were taken from his person. Defendants were arrested within a few minutes after the occurrence, and both denied then and at the time of the trial that they had seen the complaining witness previous to the arrest. The arresting officer testified that one of the defendants threw into the street letters which were identified as the

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property of Weir, and the latter’s watch with a broken chain attached was found a few feet from the letters. The clothing of the defendants was blood-stained, and both were identified by Weir as the persons who committed the robbery.

Defendants having denied that they were present at the time or place of the alleged crime, an instruction was given defining the nature of an alibi, in which it was stated that “all the evidence should be carefully considered by you, and if the evidence on this subject, considered with all the other evidence, is sufficient to raise a reasonable doubt as to the guilt of the defendants you should acquit them.” The part of the quoted portion of the instruction to which defendants except consists of the words “considered with all the other evidence,” it being contended that the evidence adduced in support of the alibi should be considered independent of the other evidence in the case, and that the instruction was prejudicially erroneous.

We find no merit in defendants’ contention. It was necessary for the prosecution to prove beyond a reasonable doubt that defendants were present at the time and place of the crime alleged; and while, as held in