People v. Foley

LANGDON, P. J.

This is an appeal by the defendant from a judgment of conviction of the crime of robbery. The offense alleged in the indictment was the robbery of the Bank of Alameda County, located at Alvarado, California. Two prior convictions for felonies were also charged against the defendant, to which he pleaded guilty.

The president, cashier, and another employee of the bank testified that on October 13, 1920, at about 11 o’clock in the morning, four men arrived at the bank in an automobile. While one of them remained outside on guard, the other three entered the bank and, after shooting the president through the shoulder, secured about twenty-three thousand dollars in money and escaped in the automobile after having locked the employees of the bank in a vault.

Appellant calls to our attention the fact that some of the witnesses for the prosecution were not absolutely positive in their identification of the defendant as one of the perpetrators of the crime. It is true that two of the witnesses were reluctant to positively identify the defendant. One of these witnesses, however, stated that the defendant “resembled the man that was there”; that his “features and all, resembled the man that was there.” Another witness, while not positive in his identification, stated that he recognized the defendant by some peeularity of his cheek-bone and hair, and by his hands, which werennusually small. Owing to the fact that the men who

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robbed the bank donned masks upon entering the building, it was difficult for the witnesses, who had not observed them until they were masked, to be absolutely positive in identifying the defendant because such identification necessarily depended upon a recognition of such physical' peculiarities as were unhidden by the mask. But the effect of any reluctance upon the part of these witnesses to state beyond all possibility of doubt that the defendant was one of the men who entered the bank upon the occasion in question is entirely overcome by the positive identification of defendant by the witness Matoza. Matoza was a customer of the bank and arrived there while the robbery was going on. He heard the shots fired and one of the men on guard forced him to enter the bank. He was later locked in the vault with the employees of the bank. He testified positively that he saw the defendant at the bank; that defendant was the first of the three men to enter the bank. He stated that he identified defendant by his face and his eyes, having seen defendant enter the bank before he was masked. The bank cashier also positively identified the defendant. He saw the defendant go around to the directors’ room and meet there the president of the bank. At that time defendant was adjusting Ms mask. Two shots were fired. This witness also saw the defendant gather up the money. Upon cross-examination this witness swore, positively, that defendant was one of the men who robbed the bank. He stated that he could not be mistaken; that he had a picture in his mind of the entire incident which he would never forget.