People v. Purio

BURNETT, J.

Appellants were convicted of the crime of robbery and they appeal from the judgment and order denying the motion for a new trial. . The evidence for the people showed that they entered a store kept by certain Chinese in the city of Merced and by the use of force and violence took quite a sum of money from the person of several of the Chinamen, including the owner, who were therein at the time. .It was a brutal crime and there was strong and convincing evidence of the guilt of the defendants. They were positively identified by two of the Chinese. One of them made an admission which was virtually equivalent to a confession of guilt, and strong circumstantial evidence was introduced tending to connect the defendants with the commission of the crime. In fact, a careful reading of the record can leave little doubt that the verdict is just and should not be disturbed. The situation is such that we might with propriety disregard any of the alleged errors, upon the general ground that no prejudice has been shown to the substantial rights of any of the defendants. The assignments of error, however, have been carefully examined, añd while numerous, and persistently urged by appellants, it can with confidence be said that nearly, if not quite, all of

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them are destitute of any merit. If two or three of them may be questioned, they are matters of such slight importance as hardly to require serious consideration. Indeed, the attitude and conduct of the district attorney and of the trial judge seems to have been characterized by the greatest care and anxiety to protect and safeguard the rights of the defendants as well as to promote the welfare of the community. That appellants had a fair and impartial trial cannot be successfully controverted. And while we would be justified in affirming the conviction upon the foregoing statement, we proceed to notice a few of the objections that have been made by appellants.

The action of the court in refusing to allow more than ten peremptory challenges is claimed as error under section 1070 of the Penal Code. It is contended that, since the crime of robbery may be punished by imprisonment in the state prison for life, the defendants, by virtue of said section, were entitled to twenty of such challenges. The said provision, however, applies only to eases where no shorter sentence may be imposed. It is not applicable where the punishment, in the discretion of the court, may be less than life. It therefore does not apply to the crime of robbery wherein the statute has provided that it is punishable by imprisonment in the state prison not less than one year. (See. 213, Pen. Code.) This has been decided by the supreme court in the following cases: