People v. Scanlon

NOURSE, J.

The defendant and one Castro were tried jointly on an information charging them with an attempt to commit grand larceny. Both were convicted and Scanlon has appealed from the judgment and from the order denying his motion for a new trial. The record is prepared under section 953a of the Code of Civil Procedure.

The two defendants were seen by two police officers on Mission Street at about 8:15 P. M., acting in a suspicious manner; and were followed by the officers as they walked along the north side of Mission Street, going east. The defendants passed one Donnelly, who was lying on the sidewalk badly under the influence of liquor; they continued easterly for about fifty feet, then turned back and while the defendant Scanlon held Donnelly in an upright position Castro went through his pockets. The defendants then left Donnelly where they found him and walked directly across the street, where the police officers placed them under arrest. The officers searched both defendants and found $2.50 in the pockets of Castro.

Upon the trial the defendant Castro did not take the stand, but the defendant Scanlon testified that he was not on the north side of Mission Street on the night in question; that he did not see Donnelly until after the arrest; that he did not take any money from Donnelly and did not see Castro take any; that he was merely engaged in a friendly conversation with Castro, whom he had just met at the time, when he was struck on the head by one of the arresting officers.

The only point raised on the appeal is that the trial court erred in refusing to give two instructions asked by defendant Scanlon and which read: “If you are satisfied from the evidence that the defendant, Thomas Scanlon, stood by at the time the offense is alleged to have been committed, but did no act to aid, assist, or abet the same, you should find the defendant, Thomas Scanlon not guilty,” and “Unless

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you are satisfied, beyond a reasonable doubt, that defendant, Thomas Scanlon, did some act to aid, assist or abet the offense alleged to have been committed, you should find the defendant, Thomas Scanlon, not guilty, notwithstanding he was present at the time the offense was alleged to have been committed. ’ ’