People v. Bingham

McCOMB, J. Prom a judgment of guilty of robbery in the first degree after trial before a jury and from an order denying his motion for a new trial defendant appeals.

Viewing the evidence most favorably to the people (respondent), the essential facts are:

August 11, 1940, about 9 P. M. defendant and his codefendant Earl Bingham approached an attendant at a service station in the city of Los Angeles and requested permission to use the rest room. A few minutes later defendant ordered the attendant to accompany him into the rest room. As they entered the rest room defendant directed his eodefendant to go to the service station and take the money that was there. Codefendant Bingham returned, stating that he could not get into the cash register. After taking $2.95 from the attendant, defendant and his codefendant compelled the station attendant to open the cash register and defendant Bingham took from the cash register approximately $34.

Defendant relies for reversal of the judgment on these propositions:

First: There is no substantial evidence to sustain the judgment of guilty.

Second: The court committed prejudicial error in receiving in evidence testimony that defendant committed another robbery, armed with a gun, the day following the commission of the offense with which he is charged in the instant case.

Defendant’s first proposition is untenable. An examination of the record discloses substantial evidence to sustain each and every finding of fact upon which the judgment of guilty was necessarily predicated. Por example, the service station attendant testified to each of the facts above stated. As has been repeatedly pointed out by the appellate courts of this state, the fact that a witness’s testimony may be weakened on cross-examination or is conflicting with other evidence is not a reason for setting a judgment of guilty aside on the grounds of insufficiency of the evidence to sustain it.

Defendant’s second proposition is likewise without merit. Upon cross-examination of defendant Bingham, evidence was presented to the jury that a gun which had been introduced in evidence was similar to the gun with which defendant was armed at the time of the robberies. Evidence was also presented that such gun belonged to defendant Bing[669]