People v. Milburn

YORK, J.

This is an appeal from a judgment of conviction of first degree robbery and from an order denying defendant a new trial. The defendant, together with one Walter Wright, was accused by information filed by the district attorney of Los Angeles County of the crime of robbery. Defendant Wright entered a plea of guilty and was sentenced to San Quentin. The evidence was legally sufficient to justify the jury in finding that the defendant Milburn committed the crime of robbery, but as to whether it was first degree robbery or not is the question raised by his counsel, as he questions whether or not there was any proof that the gun used was loaded at the time of the offense. However, this is amply met by the record in that the evidence shows that the gun was used by the defendant in such a manner as would justify the jury in finding that the same was loaded. The denials of the defendant were not that the gun was not loaded, but only that he did not

[528]

participate in the robbery at all. If he had actually testified that he was present and used the gun in an unloaded condition, then we would have to pass upon a question that has not definitely been determined as to just how far the proof must go to show a gun is a dangerous weapon. The old decisions holding that a pistol or revolver is not a deadly weapon unless it is proven to have been loaded at the time it was used in the commission of a crime did not discuss the question of the manner or way in which the gun was used and as to how far the jury may consider such evidence in determining whether the same was a deadly weapon. In the instant case the jury had only to determine that the gun used was a

dangerous weapon. (People

v.

Freeman et al.,

86 Cal. App. 374 [260 Pac. 826].)

A more serious question is raised by the objection of the defendant as to the introduction of certain evidence in reference to his arrest nine days after the robbery, which evidence showed that he was then in the company of the defendant Walter Wright, who entered a plea of guilty herein. Evidence was also introduced to the trial court, but later stricken out, that the said Walter Wright was armed with a gun at the time of arrest. There was evidence also introduced in this connection showing that the defendant was armed with a dagger at that time. This evidence should never have been brought before the jury, and it is problematical as to the effect it had upon them. In case evidence was forthcoming that at the time of his arrest the defendant was armed with a gun similar to the gun with which the hold-up occurred, such evidence would probably be competent and proper evidence for the jury to consider. However, the court, after admitting the evidence, struck out that portion thereof that referred to any gun or guns on the other party or parties at the time the defendant was arrested.