People v. Richardson

DORAN, J. Charged in count one of the information with the offense of kidnapping for the purpose of robbery and in count two with the offense of robbery, defendants, who were adjudged guilty by a jury, appeal from the judgments that followed and from an order denying a motion for a new trial.

The appeal herein is based on:

“I. Insufficiency of the Evidence to Support the Judgments of Conviction.

“II. Prejudicial Misconduct on the Part of the District Attorney at the Trial of the Case.

“III. Prejudicial Error Committed by the Trial Court in Denying the Defendants’ Motions for a New Trial.”

Appellants’ argument relating to the sufficiency of the evidence is based largely on the failure of the victim to identify the defendants “positively.” The victim testified, referring to the defendants, “these men resemble the men very much that held me up”; “the one on the end, he looks [868]like the fellow that first ran to the car” and, referring to the other defendants, “they resemble the men. They had hats on and bandages around their mouths; it was kind of hard to definitely say, but they look like the men.” “Q. Would you say that they are men who had approximately the same complexion, color? A. Yes, about the same complexion and about the same size.”

Carl Q. Tinker, the victim of the robbery, was the owner of a drug store and on Christmas Eve had closed the store about midnight. Mr. Tinker testified in part as follows, “I closed the store and went to get in my ear, and I entered the car on the left-hand side and as I got into the car I heard someone running across the street, and I thought it might be someone after me, so I tried to close the door, but they ran to the door and pulled it open and said, ‘Let me in the car,’ and seemed to have a gun or something in their hand; and I was trying to get out of the car and they got in behind me, pulled—it is a two-door Ford sedan—and they pushed the seat up and got in behind me. Then my foot was outside, so he said, ‘ Get back in the car,’ so he tried to shut the door. I said, ‘I can’t shut the door because my foot is outside, ’ so I got my foot back in the car and shut the door. Then, about that time I noticed two more men coming along the sidewalk on the other side of the car, and he said, ‘Open that door, let the men in,’ but I didn’t open it, but he reached over and opened the door and let the other two men in. One got in the back and the other one set in the front seat with me. . . . Well, the fellow that was sitting next to me, he said, ‘We want that money.’ And then—I beg your pardon. Before he said that, he said, ‘We want your gun,’ they asked me for a gun. I told them I didn’t have a gun, so they seemed surprised I didn’t have a gun, and one said, ‘Look in the glove compartment.’ They looked in that for a gun. . . . Then, after they looked and didn’t see a gun, they said, ‘Now, we want the money’; and so I told them I didn’t have much money with me; and he said, “Well, we want the money that you have’; and he said, ‘Where is the money if you haven’t got it?’ I said, ‘Well, someone picked it up. I was expecting something like this might happen. I wouldn’t keep a lot of money.’ They said, ‘Oh, yes, you have, and we are going to get it.’ About that time the one in the back behind me stuck the gun to my neck and I could feel the gun pressing against my neck, and he said, ‘If you don’t do what we tell you to do, you are not going