People v. Gourdin

California Court of Appeal Sep 17, 1930 No. Docket No. 1999.Published

Before: Conrey

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Holding. The court held that the trial judge did not err in rejecting the defendant's claim of ineffective assistance of counsel due to alleged intoxication, and that the trial court's refusal to give the requested alibi instruction was not reversible error because the instruction was legally flawed and the identification evidence was clear.

Issues

Whether the trial court erred in denying a new trial based on the defendant's claim that his trial counsel was intoxicated.
Whether the trial court erred in refusing to give the defendant's requested jury instruction regarding alibi and identification.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The mere statement by affidavit of appellant that his attorney was “drunk,” and “had been drinking”, is far from being either conclusive or convincing.”

“It would not be in accordance with law to declare that the defendant must not be convicted unless he has been identified “by the person claiming to have been robbed or by some other person actually on the scene at the time of the alleged robbery”.”

[334]

CONREY, P. J.

Defendant Gourdin, together with one Farrell, was accused of the crime of robbery. Both were convicted on each of the two counts of the information. The court granted to Gourdin a new trial on the second count, and denied his motion for a new trial on the first count. From the judgment and order, relating to the first count, Gourdin appeals.

The witness Payne, who was robbed, clearly and positively identified Gourdin as the man who took his money and watch. There is no contradictory testimony, except that Farrell testified that Gourdin was not with him during certain hours of the night which included the time of the robbery.

The chief complaint of appellant now is that, as he alleged in his affidavit on motion for new trial, his attorney at the trial (who is not the attorney on this appeal) was drunk and that by reason of drunkenness he did not protect the rights of his client; especially, that said attorney refused to allow appellant to produce evidence which would have proved that at the time of the robbery he was present at a place far distant from the place where the crime was committed.

On the face of the record, the cross-examinations conducted by appellant’s attorney, and the instructions requested by him, indicate that the attorney was giving intelligent attention to the trial. The mere statement by affidavit of appellant that his attorney was “drunk,” and “had been drinking”, is far from being either conclusive or convincing. The trial judge, having observed the conduct of all persons at the trial, presumably decided that there was no merit in appellant’s contention in relation to this point. We find no error in such decision.

The only other assignment of error which seems to require comment arises out of the court’s refusal to give to the jury the following instruction: “You are instructed that in order to find the defendant George Gourdin guilty of the crime of robbery you must find that he was actually present at the time and place alleged in the information charging him with the crime of robbery, and he must be identified by the person claiming to have been robbed or some other persons actually on the scene at the time of the alleged robbery, and the identification must be certain and

People v. Gourdin

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CONREY, P. J.

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