People v. Marsh

FRICKE, J.,

pro tem.

Defendant was convicted by verdict of a jury of robbery in the first degree and burglary in the first degree, both offenses arising out of the same transaction.

The evidence for the People showed that, about 12 o’clock on the night of April 21st and 22d, Dr. J. D. Dunshee, his wife, Mrs. Erol R. Dunshee, his son, Wade A. Dunshee, and

[632]

Mrs. Byrd Ells were at the doctor’s home. The doorbell rang and, when the doctor went to the door, one Vincent Marsh said he would like to see the doctor. When the doctor invited him in two other boys stepped into the house with him and at the same time Marsh pointed a gun at Dr. Dunshee. Marsh told the other two boys to

go

ahead and they went down the hall and returned about ten minutes later. Marsh ordered Dr. Dunshee, the ladies and son into a closet and, after remaining there about ten minutes, the party left the closet, at which time the doctor saw the three men run to their car. An automatic pistol, some $3 in change, a health officer’s badge, a watch and a can of alcohol were stolen by the robbers. The watch was later found in a pawnshop where it was pawned on April 22d by one Lawrence H. Markell who testified that he did so for appellant from whom he had received it and with whom he divided the proceeds. Dr. Dunshee testified that he was as certain as he could be of anything that appellant was one of the men who entered his home with Vincent Marsh and appellant was also identified by Mrs. Ells as one of the robbers. The other persons present, the doctor’s wife and son, testified that they were unable to identify appellant as one of the men but did state that he resembled one of them. The identification of appellant as one of the principals in the crimes charged is more than sufficient. The mere fact that other persons present were not able to identify appellant does not substantially tend to prove that he was not one of the bandits. Appellant attempted to prove an alibi by testifying that he was in bed at the Paramount Hotel at 12 o’clock on the night in question and attempted to corroborate this by a witness who testified that she telephoned to the Paramount Hotel at about 12 o’clock and that the person who answered the telephone replied that Andrew Marquise was asleep, and could not be disturbed. Even ignoring the fact that this corroboration, was pure hearsay it is entitled to little weight and is more than overcome by the absence of any witness from the hotel who might have knowledge of appellant’s presence there.. Appellant testified that before going to bed he spoke to the hotel clerk and had been watching some of the boys play cards, but none of these persons was called as a witness. At most, the defense testimony produced a conflict and the.