People v. Johnston

KNIGHT, J.

The defendants were charged by information containing two counts, with the crimes of robbery and burglary. Each defendant was charged also with a number of prior convictions of felony, Johnston with five, Dowding with three and Pimentel with four. They pleaded not guilty to the charges of robbery andn burglary, admitted the prior convictions and were tried together. The jury found them guilty on both counts, and because of the prior convictions they were adjudged to be habitual criminals and sentenced to life imprisonment. (Pen. Code, sec. 644.) From the judgments of conviction and the orders denying the motions for new trial the defendants have appealed.

[243]

It is conceded that the evidence is sufficient to support the verdicts against Johnston and Dowding, but it is contended that it is legally insufficient to sustain the conviction of Pimentel. The essential facts shown by the evidence were as follows: About 9:30 o’clock on the night of August 13, 1930, a man entered a drug-store in Oakland belonging to one D. N. Bowles, ostensibly for the purpose of making a small purchase. Bowles was alone in the store at the time and as he turned to deliver the package he was confronted with a pistol which the man was pointing at him, and he was ordered to proceed to the prescription room in the rear of the store. Two other men then entered the store, and while the first man kept Bowles covered with the pistol the three followed him into the rear room, and, after talcing a quantity of narcotics from the safe, and cash and checks from the cash register, fled. None of the men were masked. Two or three days later the defendants were arrested in Crockett, Contra Costa County. Johnston and Dowding were taken into custody first. They admitted participation in the robbery and returned a quantity of the stolen narcotics, which they had hidden on the rafters of the building near the scene of the arrest; and Johnston delivered up the pistol used in committing the robbery. The men were taken back to Oakland, where they were identified by Bowles as being two of the robbers, Johnston being the man who exhibited the pistol. The following day Pimentel was arrested, and, according to the testimony of the police officers, admitted being the third man in the robbery, and was .identified as such by Bowles. At the time of his arrest he informed the officers that shortly after the robbery he shipped a suitcase to Sacramento, which the officers seized and it was found to contain part of the stolen narcotics. At the trial, however, Pimentel, as a witness in his own behalf, denied that he was one of the robbers, and denied also having so admitted to the officers. Johnston testified also that Pimentel was not there, but it was shown that Johnston, soon after his arrest, had told the officers that Pimentel was the third man in the robbery.