People v. Hale

[735]

KOFORD, P. J.

The defendants appeal from a judgment of conviction of the crime of robbery and from an order denying a new trial.

The appellants contend that the court erred in admitting in evidence two automatic pistols. One of the victims of the robbery testified that both of the defendants had guns (pistols) and the other victim testified as to the weapon held by the defendant who handled him at the time of the robbery. On being shown the weapons in court these witnesses testified that they resembled those used by the defendants at the time of the robbery and testified further as to the shape, appearance, and general description of the weapons used. Neither could positively identify the pistols. A police officer testified to having taken the weapons immediately after the arrest of defendants from the rooms in which the defendants lived with two women companions. This was five days after the robbery.

It is claimed that the pistols were not admissible because not sufficiently identified by the witnesses, because they were found five days after the robbery not in the presence of the defendants, and because other persons, namely, the two women mentioned, had access to the rooms. Appellants cite no authority except

State

v.

Kehr,

133 Iowa, 35 [110 N. W. 149], In that case it was held that mere possession by the defendant more than two months after the crime, and with no other evidence tending to identify the weapon, was insufficient as a foundation for its admission in evidence. Appellants’ objection to the evidence goes more to its weight than its admissibility. The preliminary proof is not required to amount to clear and positive identification.

(People

v.

Winters,

29 Cal. 659;

People

v.

Szafesur,