People v. McCollum

SHEPARD, J. Defendant and a codefendant named Litterell were charged and convicted of robbery in the second degree. Defendant McCollum alone appeals from the judgment and the orders denying motions for a new trial and denying bail pending appeal.

Defendant contends that the evidence of identification was insufficient to sustain a conviction and that the court erred in refusing an instruction on alibi offered by this appealing defendant.

The evidence shows that at about 7 :30 p.m. or slightly thereafter on March 5, 1958, one Chester Burris was employed as a clerk at the F & M Liquor store in the city of Garden Grove, Orange County, California. At that time he was accosted in the store by a man he later identified as this defendant, who told him this was a “stickup” or “holdup.” He had a gray fabric hood on his head but it concealed only the forehead and not the face. He had his right hand in his coat pocket pointing out. He said “Give me the money or I will blow your head off.” Burris gave him the money then on hand in the store. While this was going on a Mr. Jonkhoff started in the store but defendant Litterell poked some object in Jonkhoff’s back just above the waistline, and when Jonkhoff turned Litterell pointed at him and said “You better get out of here.” Jonkhoff left. Litterell’s face was in no way concealed and Jonkhoff later positively identified him. Jonkhoff went back to his ear only a few steps away, pulled out from the curb, stopped and wrote down the license number of a yellow 1956 Chevrolet, MYW 477, in which he had seen Litterell. Litterell later admitted to ownership of the car. Another witness named Randolph also saw the Chevrolet, which was the only car backed into the curb at that point, and likewise wrote down the number, the only difference being that he wrote down a “U” instead of the “V.” About 8:20 or 8:30 p.m. the same evening and less than an hour after the robbery Litterell and this defendant had appeared together at a cocktail lounge named “Ming,” also in the city of Garden Grove, and both were arrested about 9 p.m. at that place. [777]Defendant made conflicting statements to an investigator. Defendant offered an alibi but in the alibi claimed he was with Litterell during the entire evening, including the time when the holdup took place. Burris positively identified him as the man who committed the robbery.

It will thus be seen that while the evidence was conflicting there was definite proof, if believed, that defendant was the person who committed the robbery, and there was nothing improper in the testimony of the witnesses.