People v. Baker

CRAIG, J.

On or about January 15, 1927, one Mike Trifoni, a shoemaker, was attacked in his shop in the city of Los Angeles by a robber, and during a struggle which ensued between them the latter was shot and killed. Baker was prosecuted for the crime, which resulted in a verdict of murder in the first degree, recommending life imprisonment. He moved for a new trial, which was denied, and appeals from the judgment and order denying a new trial.

Appellant seeks a reversal upon the ground that the evidence was wholly circumstantial, and that it was insufficient, particularly as to identification, to support the verdict and judgment.

Trifoni testified that at about 11 o ’clock P. M. of said date a man entered his place of business, produced a .45 caliber pistol, and ordered him to throw up his hands and give him his money; that the witness then caught the man’s hands, and was wrestling with him when the latter’s revolver was discharged several times; that “then the other fellow was outside and was shooting” from near the sidewalk ; that the robber suddenly relaxed, fell to the floor, and a man who resembled the defendant entered with a pistol in his hand, ordered Trifoni to stand by the wall, took the revolver from the hand of the first intruder, went outside, and departed in an automobile in which about six others apparently were waiting. He testified that the second man who entered carried a small gun of about .32 or .38 caliber. Police officers immediately entered the store

[631]

and found the first arrival lying face downward. It is not denied that he was dead, that a .38 caliber bullet had pierced his heart, and that three .45 caliber empty shells lay on the floor outside, and five .38 caliber shells were found outside of Trifoni’s establishment. It affirmatively appears, in part from appellant’s own testimony, that he and the deceased, who proved to be one Paul Gotham, had been friends for about five years, and that they were living together at the time of the homicide; that they visited an acquaintance by the name of Nelson, who loaned them his automobile, and that Gotham also inquired if Nelson would loan him his .45 caliber automatic pistol, which Nelson replied that he was not “in the habit of loaning”; that they drove about the city, finally stopping in front of Trifoni’s store, and that Gotham asked Baker to wait for him, alighted, entered the store, and almost immediately shots were heard by the defendant. Appellant testified that he at once drove to the apartment where he and Gotham had been living, and left the car standing in the street; that he spent the night at a hotel in another part of the city, but did not communicate with Nelson regarding the whereabouts of the automobile, nor the shooting; that on the following morning at about 6 o’clock he went to San Pedro, shipped to New York on a tanker, and from there sailed to Italy, from whence he returned some months later. Following his arrest, and on October 27, 1927, the defendant made a statement to officers in which he replied to questions that he had been anxious to leave Los Angeles for some time, but that he was without money. He was asked when they had discussed holding up the shoemaker, to which he replied: “It wasn’t discussed. I did not know what he was going to do at all. He never told me of his plans or what he "was going tó do.” The statement contains also the following question and answer: “Q. When you and Gotham went to this shop, was anybody else along, or just you and he? A. There was no one with us. There was no one else in this affair but us.”