People v. Gibson

GRIFFIN, J. Defendant-appellant was convicted by a jury of armed robbery (violation of Pen. Code, § 211a) and of assault with a deadly weapon, a lesser offense included in the charge of assault with the intent to commit murder (violation of Pen. Code, §217). He admitted one prior felony conviction (robbery, second degree). He was sentenced to state’s prison on the first charge and appeals from the judgment. The only question raised is the admissibility of a newspaper clipping offered for impeachment purposes.

The complaining witness testified that defendant assaulted him with a revolver on the evening of January 7, 1957, at about 7:30 p. m., while he was alone attending his small [536]grocery store. He testified defendant came in, went to the rear of the store, removed a small carton of beer, returned it to the cash register where he was standing; that defendant was immediately in front of him across the counter (about 18 inches away) and was bareheaded; that they stared at each other for some time; that defendant then pulled a gun from his jacket, shot twice, struck the complaining witness in the hand and hip and took money from the cash drawer; that when he started chasing defendant he left without the money but took the beer with him; that the police and reporters arrived and he was taken to the hospital; that he was not in condition to talk because he had tubes in his nostrils; that he gave no description of the assailant to anyone until the next day; that two or three days later pictures were brought from the police station on several occasions; that he looked at them and identified defendant from one of these pictures; and that he then, for the first time, described his assailant.

He testified at the trial that defendant’s hair was brown, the same color it appeared to be in the courtroom, and that he still had a wave in it; that he noticed no scars on his face although he did make careful note of his features; that he, the complaining witness, was about 5 feet 11 inches tall; that he was standing on a rubber mat and defendant’s eyes were about on a level with his as he stood there; that he estimated defendant’s age between 30 and 35 years, his weight at approximately 185 pounds, and said that when one is looking down the “barrel of a 38 you aren’t too good at weights and heights”; that he later, from a lineup of prisoners, identified defendant as the man who assaulted him, and that the defendant, seated in the courtroom, was the same man.

Defendant, who was apprehended on February 18th, testified, after admitting he had been convicted of two felonies, that he was 6 feet 3 inches tall, weighed 223-240 pounds, had several scars on his face, his eyes were blue, and that he had black hair on the day of the robbery but that was not its present color, which was dark brown; that once before he had bleached it blonde, and since then he had dyed it black on several occasions. He said at the trial the natural color of his hair had been restored (brown) due to his confinement in jail. He then testified on the night of the robbery he was in company with one Hamilton riding around; that they stopped at the “Mug” about 7 p. m. and then went to their apartment and went to bed. He denied being at the Ober store or