People v. Smith

DRAPEAU, J. A café in Long Beach was robbed at gunpoint. The time was shortly before midnight. A man held a loaded pistol on the bartender and made him give him the money in the cash register.

A waitress on duty, seeing what was going on, started away from there right now. She intended to make her escape out of a side door at the rear of the café. But she was intercepted by another man, who pointed a pistol at her, and told her to sit down and she wouldn’t be hurt. This she did without any argument. She just sat there and looked at the man. Her observation enabled her to positively and unequivocally identify him later.

Then these two men ran out the same door the waitress had been heading for. As they were leaving they fired bullets from their revolvers into the ceiling of the café.

Both men were apprehended, charged with robbery first degree and with priors, tried together, convicted by a jury, and sentenced to the state penitentiary.

The man who held the gun on the bartender and who took the money did not appeal.

The other man, Charles Durege, filed a notice of appeal from the “sentence,” and appears in this court, as he did in the superior court, as his own lawyer.

His contentions on appeal are as follows:

1. That he was denied due process of law when this court denied his motion to augment the record by adding to it the pamphlet of general instructions for jurors used in Los Angeles County.

2. That testimony that when he was arrested there was found on his person a 38-calibre revolver was inadmissible.

3. That it was misconduct for the assistant district attorney who tried the case to cause that particular revolver to be marked for identification, and to ask questions of witnesses about it.

[8074]. That it was error for the trial court to admit evidence concerning this revolver “out of order.”

5. That the trial court should have instructed the jury that the testimony of a witness who reads from a memorandum should he received with caution.

6. That the assistant district attorney was guilty of misconduct in his argument to the jury, in his references to defendant’s failure to testify in his own behalf.