People v. Dahl

TYLER, P. J.

Appellant was accused on information filed by the district attorney of the crime of robbery. Upon his arraignment he pleaded not guilty and upon trial was convicted of the crime as charged. Motion for a new trial was made and denied, whereupon sentence in the state prison was imposed. The appeal is from the- judgment of

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conviction and from the order denying the motion for a new trial. Briefly stated, the facts are as follows: The complaining witness had been employed at a certain restaurant as cashier. While so employed he became acquainted with defendant who also had been employed at the same place of business. Early in the morning of the day on which the crime charged was committed, the defendant came into the restaurant and held up the cashier, by putting him in fear with a loaded revolver. Defendant testified that the act was committed under a prearranged plan with the cashier.

The ground relied upon for a reversal is the alleged error of the court in instructing the jury defining robbery, and its refusal to give an instruction based upon section 1111 of the Penal Code, relating to accomplices. It is also claimed that the evidence is insufficient to support the verdict. Respondent presents the argument that this court is without jurisdiction to entertain the appeal for the reason that appellant failed to comply with the rule requiring him to file with the clerk and present to the trial court within five days after giving notice of appeal, an application stating the grounds of appeal and the points relied on to support the same, as required by the rules of this court promulgated by the judicial council pursuant to section 1246 of the Penal Code. It sufficiently appears, by affidavit, that the rule was complied with. The motion to dismiss is therefore denied.

The claim that the trial court committed error in instructing the jury relative to the crime of robbery and in failing to instruct it with reference to accomplices is without merit. The complaint urged against the given instruction is that it failed to inform the jury that it might convict defendant of the lesser offense, he having testified that he did not use a deadly weapon in the perpetration of the crime. But defendant admitted that he was armed with a revolver when he committed the act. The fact that the deadly weapon was thus available to him to carry out the criminal act is sufficient to bring him within the operation of the statute; The weapon need not be exposed.