People v. Sloan

SALSMAN, J. Appellant was charged with robbery (Pen. Code, § 211), convicted by a jury, and appeals.

The record supports the following statement of facts: On October 1, 1962, at about 2:30 a.m., Earl Peterson, attendant at a service station in Oakland, was beaten and robbed by two Negroes. The robbers walked into the service station premises and confronted Peterson in the office. One robber, later identified as appellant, held a gun on Peterson and the other battered him about the head, rendering him unconscious. A few moments after this attack, Lyle Marquardt, a tow truck operator and friend of Peterson, drove past the station. He saw a Negro in the station, but did not see Peterson. Marquardt turned his truck around, drove it into the [98]service station, and again saw a Negro. A few moments later he saw two Negroes leave the station, walking, rapidly, and Marquardt followed them in his truck, and when he lost them he called the police.

Peterson recovered consciousness during the robbery, and although instructed by the robbers to keep his face to the floor, he got a glimpse of one robber as the robbery progressed. Later, during the evening of the day the robbery took place, Peterson and Marquardt attended a police lineup which included appellant and four other men, all Negroes. Marquardt identified appellant as one of the robbers. Peterson withheld identification at that time, but about a month later identified appellant from certain mug pictures shown to him by the police. At trial, both Peterson and Marquardt identified appellant. Appellant denied the offense charged, and produced two alibi witnesses, one his wife, the other his mother. His witnesses testified that appellant was at home at the time of the robbery.

Appellant first contends there is no support for the judgment of conviction because the evidence as to his identity as one of the robbers is insufficient. Appellant recognizes the well settled rule that on appeal we must view the evidence in the light most favorable to the respondent (People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778]) and that if substantial evidence supports the jury’s finding, such finding must be sustained. (People v. Jones, 36 Cal.2d 373, 375 [224 P.2d 353]; People v. Molarius, 213 Cal.App.2d 10, 15 [28 Cal.Rptr. 541].) Here there is substantial evidence to support the finding that appellant was one of the robbers. One witness identified him at the police lineup, and both witnesses to the robbery identified appellant at trial. Appellant attacks the testimony of these witnesses, however, and calls it weak and contradictory. Here he points to failure of Peterson to identify appellant at the lineup, and to statements of Marquardt given to the police describing the robber as a dark Negro, 6 feet 2 or 3 inches tall, with no mustache. A photograph of the lineup in which appellant appears shows him to be a Negro of medium dark complexion, 6 feet in height, with a thin line mustache. Thus there is some difference between Marquardt’s description given to the police and appellant’s actual appearance; yet when appellant stepped into the lineup, as the last man to enter it, Marquardt readily identified him as one of the robbers. At any rate, if there was any weakness in the identification testimony it was a matter