People v. Radz

BISHOP, J.,

pro tem.

On this appeal from a judgment, following his conviction of robbery in the first degree, and from the order denying his motion for a new trial, appellant presents but two points for our consideration. The first, that the evidence is insufficient, is fully disposed of by noting the testimony of the service station attendant. He stated that he was robbed at the point of a gun by two men, one masked and one unmasked, at 10:30 P. M. on April 28th. The service station where the robbery occurred was brilliantly lighted; the men were at their work of opening the till and effecting the robbery, some three to four minutes, during which period the witness saw the one who wore no mask, full face, profile and from the rear. The one who wore no mask, the witness stated, was the appellant. This alone is sufficient evidence to support the verdict.

Appellant’s second point is that a new trial should have been granted him because of newly discovered evidence. Two affidavits were filed in support of the motion for a new trial. One, by a woman who was in attendance at the trial, but not in the role of witness, recited that appellant’s co-defendant and a man known to her as Shapiro, were con

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stant visitors at her home during the last week in April. On the night of the robbery, the two arrived at her house early in the evening, remained there until about 10 o’clock, left in an automobile, to return forty-five minutes to an hour later. On their return they had money, “whereas to the best of affiant’s knowledge, they did not have before”. Where they were or what they were doing during their absence, she states she did not know. Shapiro, the affidavit continued, was a man five feet four or five inches in height, with a swarthy complexion and of a stocky build. So far as affiant was aware, Shapiro had but two suits, one brown, the other dark blue with a noticeable white stripe in it, and “to the best of her recollection” he was wearing the blue suit the night of the robbery. The other affidavit was from a woman who, as a witness at the trial, presented an alibi for the appellant, which the jury did not accept. In addition to some statements which are purely hearsay, and as such to be disregarded, her affidavit merely corroborates the contents of the first as to Shapiro’s general description and his being seen in a dark blue suit with a noticeable white stripe.