People v. O'Brien

STURTEVANT, J.

The defendant was convicted of the crime of robbery. From the judgment and the order denying him a new trial he has appealed.

On the twenty-fourth day of September, 1923, Paul Quirk, as cashier of the Great Western Smelting & Refining Company, went to the Anglo and London Paris National Bank of San Francisco and there procured the sum of two thousand four hundred dollars to meet the weekly pay-roll of said company. He was accompanied by a Mr. Blum. They returned from the bank in an automobile. While they were returning they passed down First Street to Folsom Street and then turned into Folsom Street. As they did so another automobile containing two men crowded their car into the curb, causing it to stop. When their ear came to a stop one of the men in the other automobile alighted and pointed a gun at Quirk and Blum and demanded the money. The bandit was on the left-hand side of the machine and standing in the street. Blum sat on the same side of the machine and was between the bandit and Quirk. Upon the demand

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of the bandit Quirk handed the satchel containing the money to the bandit. During this time the other bandit had remained in the machine. Neither one of the bandits was masked. On the last day of December, 1923, Quirk and Blum were both called to the city jail.

“Mr. U’Ren: Q. Now did you again see this defendant after this occurrence upon the street that you have just related? A. I think it was the last day of December, 1923. Q. Where? A. In the city jail. Q. And under what circumstances ? A. I was taken up to a room there where there were seven or eight men lined up, and asked to—and I was asked if I could pick out the man who held me up out of that bunch. Q. Did you pick him out? A. I did. Q. Who did you pick out? A. O’Brien. Q. The defendant here? A. The defendant.”

Otherwise than to state the facts of the occurrence on September 24, 1923, the direct examination of the witness Quirk contained not a word of evidence as to any other matter, conversation, or thing except as above stated. In particular he was not asked of or concerning any conversation, or conversations, except as above stated. On cross-examination counsel for the appellant developed certain inconsistencies regarding the statements made at different times by the witness of and concerning the weight of the bandit, the height of the bandit, and the exact color of the bandit’s hair. He also developed the fact that the bandit who held the revolver stood within three feet of the witness in plain sight and that he could be seen plainly and that he was unmasked. In conducting his cross-examination the attorney for the appellant was allowed, without objection, to state that on the day of the robbery Detective McGrath came to the office.and interviewed the witness of and concerning the holdup and to state fully statements made by the witness to McGrath at that time. In the same manner the witness was fully examined regarding his visit to the city jail on December 31, 1923; to state who accompanied him and where they went. Following these proceedings the witness was then asked: “ Q. Mr. Blum, the gentleman who was with you on that day, did not identify this defendant, did he? Mr. U’Ren: We object upon the ground that it is incompetent, irrelevant and immaterial, not cross-examination . . . hearsay, not the best evidence. The Court: ... I will sustain the objection.” The ruling was - clearly correct. On