People v. Kelly, Cr. 2915
| Citation | 168 Cal.App.2d 387,335 P.2d 955 |
| Decision Date | 05 March 1959 |
| Docket Number | Cr. 2915 |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Rodell KELLY, Defendant and Appellant. |
| Court | California Court of Appeals |
Walter D. Cook, Sacramento, for appellant.
Edmund G. Brown, Atty. Gen., by Doris H. Maier and Lloyd Hinkelman, Deputies Atty. Gen., for respondent.
After trial by the court without a jury appellant was found guilty of robbery in the first degree.
On the evening of April 29, 1958, three people were in a restaurant in Sacramento County. They were Mrs. Del Monico, who was the cook and a co-owner of the restaurant, Scharleene Spencer, a waitress, and Fred T. Yound, a customer. Appellant was charged separately with robbing the three. At the conclusion of the trial and on motion of the district attorney, the trial court dismissed the counts charging robbery of the waitress and the customer. The court found appellant guilty of robbing Mrs. Del Monico.
There was evidence that at about 7 P. M. Mrs. Del Monico admitted Fred Young to the restaurant and then locked the door. She returned to the kitchen to prepare food for him. Within minutes thereafter Mrs. Spencer saw appellant standing by the door. She walked over and opened the door to inform him the restaurant was closed. He displayed a .45 caliber automatic pistol and pushed his way in. Mrs. Spencer screamed, whereupon appellant told her to shut up and sit down. He then entered the kitchen, grabbed Mrs. Del Monico's wrist, and twisted it, and told her to open the cash register. She did so and gave to appellant the cash contents amounting to about $50. Appellant then turned to Mrs. Spencer and took from her $2 she carried in a purse. He then turned to Young and took from him his wallet, extracted therefrom $12 and before leaving gave the wallet to Young. He ordered the three to lie down on the floor and to remain there for 3 minutes, failing which he would shoot. He left the restaurant. Mrs. Del Monico immediately notified peace officers who started a search. Appellant was arrested about 4 1/2 hours thereafter. He was found lying on his stomach on some boards by a pumphouse located at the rear of a house on Cypress Street. When discovered he was lying with his right hand under him, his left hand stretched out in front. A search of the place where he was lying disclosed, under the boards, a .45 automatic pistol that was cocked and loaded. It had one shell in the chamber and two shells in the clip. Appellant was positively identified by all three of his victims. It is obvious that the evidence was sufficient to sustain the conviction that he had robbed Mrs. Del Monico.
Appellant assigns as error the court's refusal on his motion to strike out the testimony of the officer that the gun when found was loaded. He argues that there was no evidence that it was loaded at the time of the robbery. The revolver, whether loaded or not, was a deadly weapon within the meaning of Section 211a of the Penal Code. People v. Rainey, 125 Cal.App.2d 739, 741, 271 P.2d 144. The testimony related also established sufficiently that the gun had been loaded when he used it to commit the robbery. The officers had been continually searching the area wherein he was found and the fact that when found the weapon was near his hand, although concealed under the boards, and that it was then loaded, was sufficient to warrant a finding that it had...
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...that it be loaded. See State v. Mitchell, 106 Ariz. 492, 496--497, 478 P.2d 517, 521--522 (1970). Se also, People v. Kelly, 168 Cal.App.2d 387, 335 P.2d 955 (1959). We therefore hold that in this case, the prosecution's evidence against Alexander was not defective because of the failure to ......
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...each assault and theft from a different person, although occurring at the same time and place, is a separate crime. People v. Kelly, 168 Cal.App.2d 387, 335 P.2d 955; People v. Lagomarsino, 97 Cal.App.2d 92, 217 P.2d 124; Keeton v. Commonwealth, 92 Ky. 522, 18 S.W. 359, 13 Ky.L. 748; Novak ......
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