People v. Zimmerman

[86]

COOPER, J.

Defendant was convicted of the crime of robbery. He made a motion for a new trial, which was denied, and this appeal is from the judgment and the order denying the motion.

There is no question as to the sufficiency of the evidence to sustain the verdict. It shows that on the 20th of March, 1905, one Daly, as a messenger of the Central Bank of Oakland, in company with one Roche, was carrying $10,000 in gold and silver coin, the property of said bank, from its place of business in Oakland, to the Bank of Point Richmond in Contra Costa county. On the trip, which was made in a buggy in open daylight, Daly and Roche took the main road to Point Richmond, and while driving along Potrero avenue, some forty feet beyond the track of the Southern Pacific Railroad, defendant jumped out from behind a post, raised a rifle which he had in his hand, leveled it at Daly’s head, and told him to hold up. At the same instant a companion of defendant stepped out from behind a buggy with a revolver, which he pointed at Roche’s head. With the rifle and pistol pointed at them, Daly and Roche were compelled to get out of their buggy, and the coin was taken from them, after which they were made to go a short distance from the scene of the robbery, and lie down with their faces to the ground. They were then tied and gagged by defendant and his companion, and in this condition left upon the ground.

During the trial the prosecution called one Mulcahey as a witness, who testified, in substance, that he, defendant, and one Collins knew the fact that Daly, as a messenger for the Central Bank of Oakland, had for some time been in the habit of making trips from the Central Bank to Point Richmond about twice a month, for the purpose of conveying a large amount of coin on each trip, which was used in paying the laborers in the oil works at Point Richmond, and knowing the above facts, and the habit of Daly as to carrying the coin, they entered into an agreement to waylay and rob Daly of the coin in his possession on one of these trips; that this agreement or conspiracy was entered into some time prior to, or about, the 1st of October, 1904, and, in pursuance of the common plan, four unsuccessful attempts were made to rob Daly after October 1st and prior to December 20, 1904. The witness testified that, on December 23, 1904, he was arrested and placed in prison, and knew nothing further of any of the