People v. Jenkins

ALLISON, J.,

pro

tem.

The defendant in this case is charged by information with the crime of robbery. The jury returned a verdict of guilty of robbery in the second degree. This appeal is from the judgment of conviction and from an order denying defendant’s motion for a new trial.

It appears that on the twelfth day of June, 1931, the defendant was running a “Beer Garden” situated about two miles east of the city of Brawley, in the county of Imperial, state of California. The defendant was present in the early part of the evening and was engaged in dealing a gambling game called “Twenty-One”. About midnight the defendant left the place and returned about 12':30 A. M. About 1:30 A. M. or thereabouts, two masked men, armed with shotguns, returned to the premises. One of the armed men was recognized as the defendant. The defendant stuck his shotgun against the back of the complaining witness Abraham and ordered him to put up his hands. While the defendant held the gun the other masked man took $50 and

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some papers from Abraham’s pocket. Notwithstanding the disguise that the defendant assumed, he was recognized by five persons who were in and about the defendant’s place on the occasion in question. The defense produced an equal number of witnesses who testified that they were there at the time of the robbery, some of whom were victims thereof, and that neither of the two masked men who did the robbing was the defendant.

It is first contended that the court erred by instructing the jury in effect that they might find the defendant guilty of robbery in the second degree, and that the verdict of the jury finding the defendant guilty of robbery in the second degree was and is contrary to the law and the evidence. In support of defendant’s contention he insists that whoever committed the robbery in question committed the crime of first degree robbery, and that there is no dispute that the crime was committed by two men, both of whom were armed with shotguns, which are dangerous and deadly weapons, and that if the defendant participated therein he is guilty of robbery in the first degree and not in the second degree. That, therefore, there was no evidence to warrant the court in instructing the jury that they might find the defendant guilty of robbery in the second degree.