People v. Kalpakoff

CONREY, P. J.

Appellant and two others were tried together and convicted of the crime of robbery of the first degree, committed as follows: On the twenty-eighth day of December, 1929, in the night-time, the defendants, in a drugstore of one G. IT. Brown, forcibly took from the possession of Brown the sum of $79. It was shown that appellant at the time of the commission of the crime was armed with a deadly weapon, a 32-caliber revolver.

The “reasons for reversal” as listed at the beginning of the brief are as follows: That the court erred in admitting gun Exhibit 1; that the court erred in sustaining objection of district attorney to a question propounded to the witness Paul Kalpakoff, brother of appellant; that the decision is contrary to the law and the evidence; that the court erred in overruling an objection of appellant to a question pro

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pounded to the witness Lockhard; that the court erred in denying appellant’s motion for a new trial.

A trial by jury having been duly waived, the case was tried before the court without a jury. The witness .Brown testified that at the time of the robbery he saw a gun in the hand of appellant. A 32-caliber gun was exhibited to the witness and he identified it as a gun which he saw in the hands of Stupin, one of the other defendants, and this gun was offered and admitted in evidence without objection. The witness identified this gun as being of the approximate size and as having upon it certain rust spots which were like rust spots he had noticed upon the gun in Stupin’s hands. This 3'2-caliber gun was not the one which the witness saw in the hands of Kalpakoff at the time of the robbery, but it was later found in the automobile of appellant at the time appellant was arrested; and three 32-caliber cartridges were, at the same time of arrest, found in the pocketbook of appellant. The court committed no error in admitting in evidence the said gun, Exhibit 1.

The objection of the district attorney to the question propounded to the witness Paul Kalpakoff, which objection the court sustained, related to an interview between this witness and the witness Brown at Brown’s drugstore about a month after the time of the robbery. The witness Paul Kalpakoff having testified that he and his mother and two other persons called upon Brown at his drugstore, this question was asked: “Now will you tell the court, please, what conversation was then had?’’ The objection made was that the question called for hearsay evidence. It is now claimed that the court erred in sustaining this objection, and that the question was asked for the purpose of impeaching the witness Brown in relation to testimony given by him. It appears in the record that on cross-examination of Brown, that witness denied that on the occasion of the visit to his store of Paul Kalpakoff and his mother and said two other persons, he had stated that appellant was not one of the men in his store at the time of the robbery. Appellant’s present contention is that the question asked of Paul Kalpakoff, objection to which was sustained by the court, was a proper question for impeachment of Brown’s testimony. The' question as propounded asked for the conversation in general, in which conversation at