People v. Clough

Morrison, C. J.: On the argument of this case, it was contended, on behalf of the defendant, and urged as a ground of reversal of the judgment, that no act of robbery was established by the evidence. It is claimed that one Ulter was associated with the defendant in the taking of the property, and that there was an understanding between Gage (the party alleged to have been robbed) and Ulter, that Gage should meet Ulter and the defendant at an appointed time and place, and go through the form of being robbed by the defendant. If the evidence supported this theory, it would result, that the act did not constitute the crime charged. “ Robbing is the felonious taking of personal property in the possession of another, from his person and against his will, accomplished by force or fear.” (Penal Code, § 211.)

But the evidence fails to show any such collusion between Ulter and Gage, and in fact it fails to show that Ulter was a party to the robbery, or that he knew anything about it. The evidence of the prosecuting witness, Gage, is positive, consistent, and, so far as we can see, entitled to all the weight which was given to it by the jury. He positively denies the existence of any understanding between Ulter and himself in respect to the robbery, and his whole conduct immediately after the robbery tends to overthrow the theory that he was a party to an agreement such as is claimed to have existed in this case. He proceeded at once to the office of the Chief of Police, gave the officer in charge information of the circumstances attending the robbery, and also a description of the defendant. The officer says that the prosecuting witness was very much excited at the time, and his whole conduct was that of a man who had been surprised and robbed. The Chief of Police made immediate pursuit and captured the defendant within a few minutes after the robbery was committed. The property which had been taken from the prosecuting witness was found on the person of the de[440]fenclant, and the only explanation he gave of such possession was, that he had " picked up the watch.” The evidence of the Chief of Police is as follows: “ I saw a man cross over at the American Bakery alone, in the darkest part of the street; I followed up; when he got to the corner of Spring, below the Postoffice, he stopped and looked around, and commenced to whistle, and then started up the street; I followed him into the United States Hotel, and the bar-tender pointed out .to me the last man who had come in; he was reading a newspaper; I arrested him, and questioned him; he had a bulldog sixshooter; we walked up to the office, and then I searched him; I found the watch in his pants pocket; I said, 'That is a peculiar place to carry a watch,’ and he said, ‘I picked it up;’ I examined him further, and found a ten-dollar gold piece, a trade dollar, and some keys; Gage described the watch and gave me the number of it; I handed it to Captain Davis, and told him to see if that number corresponded; he said, 'Yes.’”