People v. Hartman

MUSSELL, J. Appellants Buster Elroy Hartman and John David Ray were charged with the crime of robbery in that by means of force and fear and against the will of Kenneth R. Olson and Lawrence H. Weaver, they took from the person of Kenneth R. Olson $47, in money, the personal property of Kenneth R. Olson. The information also contained the allegation that at the time of the commission of said offense appellants were armed with a deadly weapon, to wit, a .32 calibre revolver. They were tried before a jury and found guilty of robbery in the first degree. It was further found that they were armed with a deadly weapon at the time the robbery was committed. Motions for a new trial were denied. Imposition of sentences was suspended for five years and appellants were placed on probation under certain conditions, including the requirement that they spend the first year of the probationary period in the custody of the •sheriff of San Diego County.

Appellants in their appeals from the judgments of conviction do not question the sufficiency of the evidence to support them but claim that the court erred in decisions and questions of law arising during the trial, in instructing the jury, and that the district attorney was guilty of prejudicial misconduct.

On the night of July 10, 1957, Kenneth Olson and Lawrence Weaver, members of the United States Navy, met the appellants, who were also in the Navy, in downtown San Diego. After some conversation, they all got into an automobile which appellant Hartman had borrowed from a friend and started to go to Tijuana. Before they left San Diego, appellant Ray went to his locker in the Locker Club and obtained a revolver, which he had previously borrowed, a pint of rum, and his jacket. Hartman drove the car to a filling station and bought gasoline and a stop was then made at a bar where Ray bought six 12-ounce cans of beer with money supplied by Olson. Hartman drove the car down a deserted country road and became so reckless that Ray took over the wheel. Several stops were [591]made and Ray finally drove the car to the side of the road and backed it into a wooded lane.

Hartman, who was then in the front seat of the car with Ray, turned around with the revolver in his hand and demanded Weaver’s wallet. It appeared that Olson had the wallet and when Ray took it from him, he, Ray, demanded the “rest of the stuff.” Hartman forced Olson to get out of the car, searched him and struck him on the back of the head. Ray took possession of the revolver and apparently it was accidentally discharged. Appellants threatened to kill Olson and Weaver if they recognized appellants and ordered Olson and Weaver to help push the car when appellants failed to get it started. Olson and Weaver were then ordered to run down the hill and appellants drove away. They were stopped by police officers at about 2 a. m. and the .32 revolver was found in the car. Hartman had a discharged .32 calibre shell in his hand and a .32 calibre live cartridge was found on his person. Appellants were arrested and taken to the San Diego Police Station where they remained until about 4 a. m., when they were taken to the Chula Vista Police Department. They were there fingerprinted and booked and then went to sleep.