People v. Moran

HALL, J.

Appellant was jointly charged with one Harold Jones with the crime of attempt to commit robbery, and was upon his trial found guilty as charged, and upon judgment being pronounced took an appeal from such judgment to this court.

The only point urged in the brief for a reversal is that the evidence does not show any overt act or attempt upon the part of appellant, but only acts of preparation. We think, however, that the evidence in the record does show something more than mere acts of preparation, and does show a sufficient overt act to constitute an attempt to commit robbery, within the rule as to attempts to commit crimes as laid down in People v.

Stites,

75 Cal. 570, [17 Pac. 693].

The evidence tends to show that either appellant or his co-defendant, at between 1 and 2 o’clock in the morning, pushed open the swinging doors of a saloon situate on Kentucky street, thrust his head within, and seeing that there were about twelve men in the saloon, withdrew and crossed the street and joined his codefendant. The two men walked away, but were immediately followed by an officer to whom they had been pointed out. The defendants were followed by the officer for about two blocks, when they took refuge in a lumber yard, «where, after a search of five or six minutes, they were found by the officer hiding behind a pile of lumber. Each defendant wore around his neck a handkerchief, with holes so fashioned that it might serve as a mask to conceal the features. Appellant had upon his person a loaded pistol. His companion had upon his person cartridges, and a pistol was shortly afterward found, by a second officer, concealed where defendants were apprehended. They were immediately taken back to the saloon. The next day appellant admitted, to an officer that he “was out to do a job, but not to do that saloon. ’ ’

It is quite immaterial whether it was appellant or his co-defendant that thrust open the door of the saloon and started to enter therein, for there can be little doubt but that they were a sting in concert in whatever they were engaged upon, the night in question.

[211]

The facts in evidence were ample to justify the conclusion that the person who pushed open the saloon door did so for the purpose and with the intent to enter the saloon,. and with force and violence feloniously take from the possession of the inmates such money as they might have upon them. The pushing open the door and the partial entry through the same were overt acts that went beyond mere acts of preparation. They were such overt acts as amounted to an attempt to commit the intended crime within the doctrine laid down in