People v. Pedel

PARKER, J., pro tem.

Defendant, Pedro Pedel, was charged by information with the crime of robbery. Upon trial before a jury he was convicted and the degree found to be robbery of the second degree. Thereafter defendant moved for a new trial and the motion was denied, whereupon the court pronounced its judgment.

The appeal rests upon three points, viz., first, that the evidence was insufficient to warrant the verdict of the jury; second, that the court erred in refusing to advise the jury to bring in a verdict of not guilty; third, error in the refusal of the trial court to give certain instructions requested by defendant.

The evidence is wholly that presented by the prosecution, and in itself not inherently weak or improbable. The prosecuting witness was a Japanese, and he testified that on October 27, 1926, he was proceeding unaccompanied along one of the public streets of Emeryville, in Alameda County, at or about the hour of 9:30 P. M. There was no one else on the street at that time in the immediate locality as far as could be observed. Suddenly and without warning, the prosecuting witness testifies, he was struck from behind, and upon turning was confronted by defendant,

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whom he identified at the trial and before trial. Upon turning he was again struck, at which time he shouted for help. Receiving a third blow he collapsed to the sidewalk, practically unconscious. Prior to the assault the prosecuting witness had upon his person, in an inside pocket of his vest a wallet containing a fifty-dollar bill and also a check-book. When he regained consciousness after the assault both the wallet, containing the money, and the check-book were gone. In their place and stead he had numerous cuts and bruises on and about his head and face. He testified further that he had given no one permission to take any of his effects and that the same were taken against his consent.

A police officer, witness for the prosecution, testified that his residence was just across the street from the scene of the assault. About 9:30 or 10 o’clock P. M. of the night in question the officer was coming down the steps of his home when he heard someone shouting and hollering. Upon looking he observed two people across the street who were apparently fighting or scuffling. He immediately-started to the scene of the conflict, and, as he approached, one of the parties to the affray ran and the officer gave pursuit. The fugitive had gone approximately two hundred feet when, coming to a fence, he attempted to jump or scramble over it. By this time the officer was upon him and apprehended him in the act of scaling the fence. The party so captured was the defendant. The officer returned with him to the place of the assault, where the prosecuting witness had remained, and, after a brief questioning, escorted both defendant and complainant to the city hall, a distance of one and a half blocks. The complaining witness appeared battered and bloodstained and stated his loss of the wallet, money and check-book. After locking up the defendant the officer returned to search for the missing property. Just on the other side of the fence, at the spot where defendant was stopped, the officer found a wallet containing a fifty-dollar bill and a check-book. The wallet and check-book were presently identified by complainant as being his property and on his person immediately prior to the assault.