People v. Avila

PULLEN, P. J. Amador Avila, appellant herein, with one Gapol, was jointly charged by information of crimes of robbery and burglary.

[629]From a judgment of conviction of Avila and from an order denying his motion for a new trial, this appeal is taken.

It is charged that on July 5, 1938, defendants stole, took and carried away about $100 in lawful money from the person of one Julia Cabebe. In the.second count it was charged that the defendants at the same time did unlawfully and burglariously enter a certain building with the intent of then and there to commit theft.

From the testimony it appears that Julia Cabebe and her husband, Vincent Cabebe, were joint proprietors of a restaurant in Stockton, which was largely patronized by members of the Filipino race.

On the morning of July 5th, Mrs. Cabebe counted her money which she had taken from her restaurant the day before, and found there was $194.50. When she finished counting this money she placed it in a leather purse and placed the purse in the bosom of her dress, and went to her place of business. About 6 o’clock on the evening of that day the defendant, Amador Avila, came into the restaurant and ordered a glass of milk. Mrs. Cabebe served the milk, and after Avila paid for the same he walked out onto the sidewalk and poured the same in the gutter. When he returned Mrs. Cabebe asked him why he did that, and he thereupon seized the front of her dress, tearing it open, took out the leather purse, and extracted a handful of bills, which the evidence disclosed was afterward found to be of the value of $100. At the time this act occurred there were three or four patrons in the restaurant, and many persons outside. Mrs. Cabebe immediately called for help and a small riot took place in the restaurant. Within a few moments police officers arrived, and forced the spectators, all of whom were Filipinos, into a rear room of the restaurant. While the officers were attempting to restore order, the two defendants, Avila and Gapol, escaped. They were soon apprehended and returned to the restaurant, where Avila was identified by Mrs. Cabebe and other witnesses as the man who had seized her purse and took the money.

Four points are raised by this .appeal. It is first charged that the trial court erred in refusing to grant a new-trial to permit Avila to present newly discovered evidence. This motion was presented upon affidavits from which it appeared that appellant claims that the dress of Mrs. Cabebe