People v. Smith

KNIGHT, J.

An appeal by defendant from a judgment of conviction of first degree robbery and from an order denying his motion for a new trial. The sufficiency of the evidence upon which the conviction is based is not questioned, but appellant urges as grounds for reversal that there was a fatal variance between the allegations of the indictment and the proof in regard to the ownership of the property stolen from the victim of the robbery, and that the court erred in ruling upon the admissibility of certain evidence offered and received on behalf of the prosecution.

[70]

The indictment charged appellant with having robbed one Wilbur A. Johnson of the sum of $17,996, “the personal property of said Wilbur A. Johnson.” The evidence proved that the money belonged to the Pacific Gas and Electric Company, a corporation, by whom Johnson was employed, but was in Johnson’s possession at the time of the robbery, and that he was robbed of the same while on his way to deposit the money in the bank. The variance complained of was immaterial. It is sufficient to sus-, tain a charge of robbery if the property feloniously and forcibly taken from the person of another belonged to any person other than the defendant; and under section 956 of the Penal Code an erroneous allegation as to ownership of the property is immaterial, if the offense is otherwise described with sufficient certainty to identify the act of robbery, the identity of the act of robbery being the same no matter upon whom the injury involved in the larceny which is included in the robbery might fall.

(People

v.

Anderson,

80 Cal. 205 [22 Pac. 139];

People

v.

Nelson,

56 Cal. 77;

People

v.

Clark,

106 Cal. 32 [39 Pac. 53].)

The robbery occurred on the sidewalk on P member 4, 1924, soon after Johnson had left the company’s building on Sutter Street and was proceeding toward the bank, accompanied by another employee of the same company. Johnson was carrying the money, consisting of currency and silver, and also a parcel containing twenty-three $1,000 bonds, belonging to said company. He had gone only a short distance when he was robbed of the money and bonds by three men, two of whom brandished pistols, and after striking Johnson on the head, felling him to the sidewalk, fled through an alley, scaled a wall and entered an automobile, but in climbing the wall dropped the package containing the bonds. After entering the automobile, the robbers followed a circuitous route, and in their flight fired several shots at their pursuers. They finally abandoned their automobile and disappeared. The automobile, it was discovered, was owned and registered in the name of appellant’s wife, Mrs. R. Smith, 272 Faxon Avenue, San Francisco. About two hours after the robbery Mrs. Smith was summoned from her home to a neighbor’s telephone and after holding a brief conversation over the phone returned hurriedly to her home, stayed there a few minutes, departed and did not