People v. Kelly

SMITH, C.

The defendant was convicted in the lower court of the crime of robbery, committed by him and two others on one Powers in the city of Los Angeles—the precise place of the crime being on the west side of Olive Street between Ninth and Tenth streets. He appeals from the judgment and from an order denying his motion for a new trial. Numerous points are urged by his counsel as grounds for reversal; and these will be considered in the order in which they occur in the brief. It will be understood that the several

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rulings complained of were made over the objections and exceptions of the defendant.

1. The point is made and argued at length in appellant’s opening brief that the court erred in refusing to set aside the information, but in the reply brief this point is abandoned.

2. It is claimed that the evidence was insufficient to justify the verdict. But Powers, the man who was robbed, testifies explicitly to all the circumstances of the crime, and clearly identifies the defendant as one of its perpetrators. The argument of the counsel goes only to the credibility of his testimony ; which was a matter for the jury to consider.

3. It is objected that the court erred in refusing to strike out the testimony of the witness Smith as to the whereabouts of one Ah Hing. Doubtless this testimony was immaterial, but it could not have injured the defendant in any way.

4. The witness Manihon had testified, without objection, that he was the city electrician, and that he knew of the electric lights at the intersection of Ninth and Tenth streets and Olive; and that no report came in from there on the 14th of January, 1902. He then testified that reports were not made unless a light went out. But it was competent, we think, for the prosecution to show the ordinary course of business of the city with regard to its lights and their general or usual condition. (Code Civ. Proc., secs. 1832, 1963, subds. 20, 28, 32.) As to the effect of the evidence, that was for the jury to determine.

The same witness testified that he had made a visit to the place of the crime the night before with Detective Steele; who “located the place where he understood the hold-up occurred”; and he then testified as to the condition of the light at that point. We have been unable to find in the record any evidence tending to show that the place referred to was the true place of the crime; and in the absence of such evidence we think the testimony was improperly admitted. But it appears from the testimony of the witness that the place showed him by Steele was about midway between the two lights; from which it may be inferred that it was the darkest-point between them (except under the trees), and consequently for the defendant the spot most favorable for observation. For it appears from the testimony of Powers that the place of the crime was in the open space towards the