People v. Seaman

STURTEVANT, J.

The district attorney filed an information against the defendants charging them with robbery. The defendants appeared and each pleaded not guilty. They were tried together before the trial court sitting with a jury. It returned separate verdicts finding each defendant guilty of robbery in the first degree. The defendants made a motion for a new trial. The motion was denied. From a judgment entered on the verdicts and from the order denying a new trial the defendants have appealed.

The defendants contend that the evidence does not justify a judgment greater than that of second degree robbery. They call to our attention that the defendant John Nissrod was the active operator. That on the ninth day of March, 1929, he entered Compton’s restaurant at No. 8 Kearny Street, San Francisco, and went to the mezzanine floor where Edward Lessner was making up the cash. Nissrod entered the room where Lessner was and, holding a pistol in one hand, he pointed it at Lessner and called upon him to throw up his hands, which Lessner did. Nissrod then approached Lessner, still holding the pistol pointed at him, and took out of Lessner’s pocket Lessner’s key. Lessner testified that he threw up his hands out of fear and that the money, which approximated one thousand dollars, was taken against his will and without his consent. A pistol was produced which Nissrod admitted was the weapon which he had used. When the pistol was produced in the courtroom

[304]

it was unloaded, and Nissrod testified that it was not loaded when he committed the robbery. There was no evidence Nissrod shot the pistol and there was m> evidence that he used it as a club with which to hammer or beat Lessner.

Under this condition of the record the defendants contend that the pistol was neither a “deadly weapon” nor a “dangerous weapon.” They cite and rely on

People

v.

Sylva,

143 Cal. 62 [76 Pac. 814] ;

People

v.

Wells,