People v. Parker

YORK, P. J. Defendants were charged in an information containing two counts with the crimes of attempted robbery and grand theft from the person. They were likewise charged in both counts with being armed with a deadly weapon •at the time of the commission of the offenses and at the time of their arrest. Defendant Williford pleaded guilty to the charge contained in count II of the information and admitted that he was armed at the time he committed the offense and at the time of his arrest. Defendant Parker was found guilty of the crime of attempted robbery, as charged in count I of the information, the jury finding that he was armed at the time of the commission of said offense, but that he was not armed at the time of his arrest. He was also found guilty of the crime of grand theft from the person, as charged in count II of the information, the jury finding as to this count that appellant was not armed either at the time he committed the offense or at the time of his arrest.

This appeal by defendant Parker alone is from the judgment of conviction, and from the order by which his motion for a new trial was denied.

The only point of contention on this appeal is that “the verdict stating that the defendant was armed at the time of the commission of the offense charged in count I of the information is erroneous as being contrary to the evidence in the case and to the law”. However, appellant admits that the testimony as to whether or not he was armed at the time of the commission of the offense charged in count I is contradictory.

Mrs. Kabaker the complaining witness in the attempted robbery count, testified that on the 1st of August, 1939, at approximately 11 o’clock in the evening, she drove her automobile into the garage at her home and when she was partly therein she heard hurried steps outside in front of the garage; that she closed the door and as she emerged from the garage, the appellant walked up to her holding a gun and said, ‘ ‘ This [117]is a stiekup”; that she became angry and told appellant to wait a moment, whereupon she turned and fled up the street to the entrance to her home. She identified appellant as the man who held her up, and she testified that he had a gun in his hand but that she did not know what kind.

Miss Mickle, a neighbor of Mrs. Kabaker, testified that on the night in question she stepped outside her kitchen door and stood on the step; that she saw a car coming from the left; that it was being driven by Mrs. Kabaker, who turned to go into her garage; that as she entered the garage another car came around the corner which was to the right of Miss Mickle; that when Mrs. Kabaker was halfway into the garage she stopped a moment to get a better start; that the second car then drove up with two young fellows in it and stopped; that appellant Parker jumped out and paced back and forth before Mrs. Kabaker’s garage and waited for her to come out, at which time he walked up to her and said, ‘ This is a stiekup ’ ’; that “I saw his hand come out” and he held in it what appeared to be a gun; that this gun resembled exhibit I (a .32 Harrington-Richards gun). She also testified that when Mrs. Kabaker started to run away from them, both of the boys ran toward their machine, hopped in and drove away; that the gun which appellant held in his hand was not a silver gun; that it was not shiny but a dull black, the same color as exhibit I; that the light in front of her garage shone in such a way that it cast a sidelight on the gun, on appellant’s face and right side, and on Mrs. Kabaker.