People v. Servillo

FOURT, J. This is an appeal from a judgment of conviction of robbery in the first degree.

Appellant (with two codefendants) was charged in an information with a violation of section 211, Penal Code, in that he, together with Leonard Dye and Neil Servillo, did on July 1, 1961, rob Vincent O’Connor (Bashford Liquors) of $197.25 in money; it was further charged that at the time of the commission of the offense said defendants were armed with a deadly weapon, namely a .32 caliber Colt automatic pistol. Leonard Dye pleaded guilty to robbery in the first degree and the court found that he was not personally armed [297]at the time of the commission of the offense. The two Servillos went to trial before a jury and each was convicted of robbery in the first degree and each was found to be armed at the time of the offense. At the hearing of appellant’s motion for a new trial the trial judge denied the motion insofar as it concerned the charge of robbery in the first degree but granted the motion with reference to the charge of being armed at the time of the offense. Or, as appellant states it in his brief, “. . . and the verdict of the jury as to the appellant being personally armed was dismissed by the Court on it’s [sic] own motion.” The trial judge granted the motion of Neil Servillo for a new trial and then upon his own motion dismissed the case entirely, even though the district attorney stated at the time, “I am under the opinion that he [Neil Servillo] could be convicted on a jury trial ten days in a row, but I will submit the matter to the Court.”

Appellant’s only contention is that the evidence is insufficient as a matter of law to support the verdict and judgment.

A résumé of some of the facts is as follows: O’Connor and his wife were in their liquor store located at 607 East Compton Boulevard in Compton, at about 11 p. m. on Saturday, July 1, 1961. Willow Street is immediately to the west of the liquor store running generally north and south and intersecting Compton Boulevard. Appellant was the manager of an apartment building (apparently in Eagle Rock) where he lived with his wife. David Gray and Leonard Dye lived in one of the apartments. Gray, Dye, Neil Servillo and appellant had been together on the evening of July 1. They left the apartment in an automobile (two-door Plymouth station wagon) which appellant had borrowed for use that night. Appellant was the driver. The automobile was driven to the Compton area by appellant to a point close by the 0 ’Connor Liquor Store and apparently parked on Compton Boulevard. Gray entered the liquor store with a gun in his hand and ordered the owners to get behind the counter and to “strip the register.” During this time the gun was in sight and the owners did as directed and placed the money which was in the register, consisting of about $197.25, in a paper sack and handed it to Gray. In compliance with a demand from Gray the owners lay down on the floor behind the counter. The establishment apparently was wired with some sort of silent alarm system for use in such an emergency and an alarm did go out to the police of the robbery which was then and there taking place. Officer Pool and his partner, at or