People v. Bishop

LILLIE, J. Defendant was convicted by the court of first degree robbery of a gasoline station. At the time of sentence, the trial judge found the weapon used to be a dangerous one and sentenced defendant to the state prison.

The sole issue on this appeal is whether the testimony of the victim is so inherently unbelievable or improbable as to render it insufficient to sustain the judgment of conviction.

According to the testimony of Harold Ray, an employee of the gasoline station and the complaining witness, the following events occurred during about five minutes, at approximately 8:45 p. m. on July 19, 1957. Ray was in the process of closing the station, which was still lighted, but was under his car fixing the stop lights when he heard someone say: ‘1 May I have the key to unlock the restroom ? ’ ’ Ray asked him if his lights were working and the person replied: “Yes, they [689]are sir.” He emerged from under the car and as he reached the restroom, the one with whom he had been speaking placed a gun in his backhand said: “All right, let’s go inside.” The washroom, about 4 feet square, was also lighted. Ray went in, turned around and faced a person wearing a brown suede jacket, dark pants and no hat or glasses, holding a blue steel automatic pistol 6 or 7 inches long. He said: “We are going to go out front and we’ll get the money out of the cash drawer. I don’t want you to make any unusual disturbance or anything like that.” In all, they remained in the washroom 30 to 45 seconds, then walked out and over to the island where the cash box was kept. More conversation took place between them and they returned to the restroom, where Ray gave him the money. There was further discussion concerning the cash, after which he took Ray’s wallet saying: “Don’t worry, I am not going to hit you.” As he left the washroom he closed the door and dropped the keys outside. Ray testified he was in fear during the time he turned over the money and that $109.07 was taken.

After the robbery, Harold Ray was shown a “mug” book by police but made no identification; later he was shown a set of pictures from which he identified defendant as the robber; seven days after the robbery he picked defendant out of a police lineup as the one who took the money; again pointed out defendant in court at the preliminary hearing and during the trial definitely identified defendant as the person who robbed him, saying: 1 ‘ There is no doubt in my mind. ’ ’

Ray further testified he noticed nothing unusual about the voice, speech, walk or condition of the eyes of the man who took the money. Defendant was arrested approximately five days after the robbery and although his car was searched, no revolver or brown suede jacket were found. Police did not search his home.