People v. Franklin

BEITTAIN, J.

The appellant was convicted on the charge of assault with intent to commit robbery. He contends the evidence was insufficient to identify him with the man who committed the assault, or to show an intent to commit robbery. His chief reliance is upon the contention regarding the question of identity. No evidence was introduced on the part of the defendant. Motion for a new trial was made and denied.

It is conceded that, a brutal and unprovoked attack was made on the complaining witness, Vickers, an old man, who, at the time of the assault, between 8 and 9 o’clock in the morning of November 28, 1918, was alone in his grocery-store in Oakland. An entire stranger entered the store and inquired about butter. He walked with Vickers to the back part of the store, where the butter was kept in a refrigerator. While they were talking a second stranger, unnoticed by Vickers, entered and, approaching Vickers from behind, struck him a violent blow with some implement over the top of the head. As Vickers turned to face his assailant, the latter said something about his mother having been insulted, and, as Vickers denied that he had ever insulted any woman, he was struck a second and a third time, when he fell to the floor. Pie was stunned, but almost immediately regained consciousness and staggered to his feet. A neighbor, who had approached the store, Mr. Llewellyn, entered at that moment, and the two strangers passed him going out as he went into the store. Seeing Vickers staggering toward him, Llewellyn first went to his aid, hut, on learning something of what had happened, he went with Vickers to the door. No one was in sight except the two men who were identified by both Vickers and Llewellyn,

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and they were walking rapidly away. Llewellyn followed them at a distance of 100 to 150 feet. He called to them, and one, claimed to be the appellant, turned and looked back at Llewellyn. The two men entered a hotel in the neighborhood, and, instead of walking across the office to the elevator, they turned sharply to the left, walking up a stairway. To Llewellyn they were identified by the woman in charge of the office as those she had brought down from the sixth floor about half an hour before, and who had registered the day before, when she had assigned them a room on the sixth floor. They did not return to their room, from which the police subsequently took their personal effects, including a suitcase, clothing, and a dirk, admittedly the property of the appellant, but for the presence of which in the room he attempted to account to the officers after his arrest. From the second floor of the hotel a window gave access to a roof, from which, in turn, through another window, a person might enter an adjoining house. At about the time the two men went upstairs in the hotel and disappeared, a woman in the adjoining house saw and talked to a man she had never seen before. He was then in the hall and was seeking a way out. After the arrest of the appellant, Vickers, Llewellyn, the woman from the hotel, and the woman who saw the stranger in her house were taken separately to the prison. While none of them would positively swear that the appellant was the man they had seen on the morning of the assault, each of them picked him from among other prisoners, and on the trial each was positive in the statement that the appellant resembled the man they had seen at the time of the crime, each expressing the belief that he was the same. Standing alone, this evidence would have been sufficient on the subject of identification.