People v. Franklin

The appellant was convicted on the charge of assault with intent to commit robbery. He contends the evidence was insufficient to identify him with the man who committed the assault, or to show an intent to commit robbery. His chief reliance is upon the contention regarding the question of identity. No evidence was introduced on the part of the defendant. Motion for a new trial was made and denied.

It is conceded that, a brutal and unprovoked attack was made on the complaining witness, Vickers, an old man, who, at the time of the assault, between 8 and 9 o’clock in the morning of November 28, 1918, was alone in his grocery-store in Oakland. An entire stranger entered the store and inquired about butter. He walked with Vickers to the back part of the store, where the butter was kept in a refrigerator. While they were talking a second stranger, unnoticed by Vickers, entered and, approaching Vickers from behind, struck him a violent blow with some implement over the top of the head. As Vickers turned to face his assailant, the latter said something about his mother having been insulted, and, as Vickers denied that he had ever insulted any woman, he was struck a second and a third time, when he fell to the floor. Pie was stunned, but almost immediately regained consciousness and staggered to his feet. A neighbor, who had approached the store, Mr. Llewellyn, entered at that moment, and the two strangers passed him going out as he went into the store. Seeing Vickers staggering toward him, Llewellyn first went to his aid, hut, on learning something of what had happened, he went with Vickers to the door. No one was in sight except the two men who were identified by both Vickers and Llewellyn,

The other of the two men engaged in the crime was one Molin, who had been convicted on the charge of assault in connection with the attack on Vickers. While he was being taken from Fairfield to Oakland, the appellant told the officer who had him in charge that Molin was with him in Stockton on November 24th, that Molin came to Oakland by stage, after having been entrusted with the appellant’s suitcase and its contents, but that he, the appellant, had gone to Napa, and had not been in Oakland for two years. The appellant did not call any witnesses to establish any of the facts thus stated by him apparently for the purpose of showing his absence from the scene of the crime. [2] The entire evidence was before the jury. The argument made on behalf of the appellant concerns its weight and credibility. These were questions for the jury to determine, and this court on appeal wilí not interfere with that determination. (People v. Emerson, 130 Cal. 563 , [ 62 Pac. 1069 ].)

The two men, who left the store together, no doubt entered in pursuance of a common purpose. Both were strangers and had appeared in the neighborhood only the day before. From the evidence the jury might reasonably have inferred that the inquiries of the first man concerning butter were made with the intention of drawing the old man, who was alone in the store, to the rear, out of sight-of anyone passing along the street. The hour was early and few people were about. The first blow was delivered from the back of the victim. The pretense of a prior insult to the mother of him who struck the blow is too trivial to receive serious consideration. Neither she nor anyone else was called to show that any such insult had taken place, or that Vickers had ever seen or heard of her. [3] The

The judgment is affirmed.

Langdon, P. J., and Nourse, J., concurred.