People v. Rogers

WORKS, P. J.

Defendant was found guilty under a charge of robbery in the first degree. He appeals from the judgment of conviction and from an order of the trial court denying his motion for a new trial.

Appellant insists that the testimony of the witness Hansen was insufficient to show an identification of appellant as the individual who committed the alleged robbery. It is said that the witness claimed to identify appellant by means of a gray coat which the latter wore at the time of the commission of the offense, but that while on cross-examination the witness was shown to have no fámiliarity with the appearance of the coat. Hansen, however, did not identify appellant by the coat alone, for the following appears in a portion of the record quoted in appellant’s brief: “Q. [By counsel for defendant]: And the cap which the defendant had on his head was pulled down how far? A. Well, right above his eyes. Q. You could obtain then, could you, a clear view of his face ? A. I could. . . . Q. That [by means of the coat and cap] is the only way you could identify him? A. No, sir. . . . Q. Well, what other way could you identify the defendant? A. By his features.” It is true that two impeaching witnesses testified that Hansen had said out of court that he could not identify appellant, or was not sure of his ability to identify him, but this testimony only gave rise to a conflict in the evidence, which the jury was privileged to resolve as it pleased. The point must therefore be determined against appellant.

At some period prior to the time when appellant was charged with robbery he had been tried on another criminal charge and had been acquitted. At the trial of the present action a police officer, over objection, was permitted

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to testify to a conversation between himself and appellant which led to the unearthing of a pistol which belonged to appellant, and the weapon was received in evidence. This conversation occurred and the gun was located pending trial of the first charge against appellant. Moreover, the police officer then knew nothing of the facts out of which arose the charge of robbery. It is contended that the trial court erred in allowing the conversation to go to the jury and in receiving the gun in evidence. But if there was any error in these respects—which we do not decide—the error could have been harmful only if the evidence disclosed to the jury the fact that appellant had been under prosecution upon another criminal charge. This disclosure, however, was not first made by the evidence in question, but by a statement of appellant’s counsel made in the presence of the jury. Under these circumstances appellant cannot successfully object to the error, if there was one. It is to be observed here that in order to fix the grade of appellant’s offense under the charge now before us, pursuant to section 211a of the Penal Code, evidence went to the jury which showed directly that he was armed with a gun at the time of the robbery and pointed it at his victim.