People v. Hopkins

THOMPSON (IRA F.), J.

The defendants were accused in an information containing two counts, filed by the district attorney of Los Angeles County, with the crimes of burglary and robbery. The defendant Digiovanni was also accused of the prior conviction of a felony, which he admitted. The jury found all the defendants guilty, but Digiovanni alone prosecutes this appeal from the judgment and from the order denying his motion for a new trial.

Appellant’s counsel presents two reasons why we should reverse the judgment. They are: (1) Insufficiency of the evidence to sustain the verdict, and (2) misconduct on the part of the district attorney.

There can be no dispute about the following essential facts: On the evening of September 28, 1931, between 9:15 and 10 o’clock P. M., appellant’s co-defendants walked into a cider mill located at 2820 East Anaheim Street in Long Beach. The two stood on opposite sides of the employee in charge and each pressed the muzzle of a gun against his body, commanding him to get the money. He told them it was in a drawer, whereupon one of them ripped part of the drawer off and took its contents, amounting to between $2 and $3. The employee was then taken out into an alley back of the store and released. In other words, there is no question raised concerning the commission of the crime or participation in it by the defendants Hopkins and Brown. But was Digiovanni a participant? For the purpose of answering this question we now set down the testimony connecting appellant with the offenses.

About the same time that the robbery occurred one Harold Nixon observed a Nash sedan going down Anaheim Street without any lights. Approximately fifteen minutes later the witness saw the same automobile parked in front of a cafe next door to the cider mill. He also testified that after observing the owner of the shop and talking to him for a moment he started for a pool-hall a short distance away

[459]

and noticed two men on the inside of the shop and one in a car—the Nash sedan; that the sedan then moved away from the curb and drove east on Anaheim to Gladys Street, at which place it made a “U” turn, coming back west on Anaheim. The license number of the car was 8T2573. Nixon then, in company with one Baumgardner and Officer Halford, in another car, followed the Nash around as it continued its apparently aimless circling in the neighborhood of the robbery. They lost sight of it on two or three occasions, but it re-appeared. Finally they stopped the Nash on Orizaba Street between Tenth and Eleventh, at which time appellant was driving and the defendant Brown was a passenger.