People v. Gonzales

WORKS, J.

The defendants were charged with an attempt to commit robbery. Defendant Gonzales was convicted and appeals from the judgment and from an order of the trial court denying his motion for a new trial. .

It is contended that the evidence was insufficient to support the- verdict in that there was no showing of an attempt to rob. It is said that the defendants frightened the complaining witness, who was the keeper of a grocery store, but that the evidence shows nothing further. This claim is -based upon a palpable misconception of the effect of the testimony. Appellant and one of his codefendants, according to the testimony of the complaining witness, appeared at the store one evening as the witness was about to close the place for the night. One of the defendants asked the proprietor of the store if he had any cookies. The proprietor was about to serve his apparent customers when, as he says, appellant “came in between the counter and cookie case and he says, [1] Stick them up,’ and got a gun about that long; he stuck him right again me. . . . Well, no use to argue with them, this fellow and another fellow, I got here

[611]

when they came, grabbed me by the throat and the other fellow stuck his gun against me and had two guns there and took me down to the refrigerator and down to the back door and take me out back way. Of course, I make a noise some way and that time they beat me out the back way.” Further testimony of the witness shows that he meant by the last words above quoted to say that the two defendants fled. There is further evidence bearing upon appellant’s point, ■but this is enough. The jury was justified in believing that the defendants were not engaged in perpetrating a practical joke upon the prosecuting witness. The point is without merit.

It appears that at the time the action was tried against the three defendants a separate charge was standing against appellant—a charge of carrying a concealed weapon, the article being what is known as a blackjack. Appellant says that this latter charge was read to the jury along with the charge against the three defendants. He also asserts that later, during the progress of the trial, the blackjack was brought into the courtroom through mistake and laid on a table before the eyes of the jury along with certain articles of clothing which were produced for the purpose of being offered in evidence. Appellant contends that he was substantially damaged by the reading of the charge of carrying a blackjack and by the presentation of that weapon to the eyes of the jury, and asks for a reversal of the judgment on that ground. He refers us to no place in the record which shows the facts concerning the reading of the charge as to the concealed weapon. There is a reference to the clerk’s transcript, not to the reporter’s transcript, in the matter of the production of the blackjack in the courtroom. When we follow this reference we are. brought only to a motion to set aside the verdict, one of the grounds stated in it being that the weapon was presented to the eyes of the jury in the manner stated in the brief. Respondent asserts that there is nothing in the record of the trial concerning this latter occurrence and, in default of a showing to the contrary by appellant, we shall assume the statement to be true. The record does show, as pointed out by respondent, that a charge that appellant, being an unnaturalized person, carried a concealed blackjack was read to the jury. This cir