87 Cal. App. 2d 544 | Cal. Ct. App. | 1948
J.Edward W. Kwok, William Lopez and Richard Lopez, were jointly charged by information with robbery from the person of one Ellen Berry of jewelry of the value of $8,400 and $15 in money, and by the same information of conspiracy to commit said robbery. On motion of the district attorney the charges were dismissed as to William Lopez and he testified for the State. Defendants Kwok and Richard Lopez were tried without a jury and convicted of both offenses. Kwok appeals.
The sole ground of the appeal is insufficiency of the evidence at the preliminary examination to justify the filing of the information, and insufficiency of the evidence at the trial to prove the commission of either offense.
It is earnestly insisted that the only reasonable conclusion from the testimony given by Vargas is that he was an accomplice in the commission of the offenses; that his testimony was wholly without corroboration and insufficient to establish sufficient cause for holding Kwok for trial. We cannot agree with this contention. The question whether Vargas was an accomplice was one of fact, and in our opinion it was not an unreasonable inference that he assisted in renting the truck for Kwok and for the use of the Lopez boys, without knowledge of the fact that it was proposed to be used in the perpetration of the robbery. There was no evidence other than that which has been related which tended to show that he had knowledge that the Lopez boys were planning the robbery. In testifying at the preliminary Vargas denied that he had turned the truck over to the boys with the consent or at the direction of Kwok. The truth of this testimony might well have been questioned by the court, since Vargas gave no reasonable explanation of his action. But even so, this circumstance was reconcilable with ignorance as to the plans of the Lopez boys for using the truck. It may be worthy of note that after the police investigation of the story told by Vargas he was released from custody, presumably for the reason that no additional evidence was discovered which would tend to connect him with the commission of the offenses. The evidence did not establish as a matter of law that Vargas was an accomplice. In addition to his testimony there was significant circumstantial evidence. The robbery was carefully planned. It was not the sort of
It was stipulated at the trial that the testimony given at the preliminary might be received in evidence, and that additional evidence might be offered by the People and defendants. Vargas testified at the trial that Kwok had directed him to deliver the truck to the Lopez boys. At the commencement of the trial the charges were dismissed as to William Lopez. His testimony in the main corroborated that of Vargas, and it added nothing to the testimony of Vargas himself which tended to connect the latter with the offenses. William testified that when he and Richard were introduced to Kwok by Vargas, Kwok promised them employment; that some two weeks before the robbery he gave William a check for $50 stating that he, William, would be furnished employment and that he would be working for Kwok. This check, payable to cash, was introduced in evidence together with testimony that it had been cashed and the money given to a woman to whom, William testified, he had turned over the check to be cashed. Kwok testified that the check had been given to Vargas, but .this was denied by Vargas. The check did not bear the endorsement of either William Lopez or Vargas. William also testified that some 10 days before the robbery Kwok had suggested it and promised him $200 if he would bring back Mrs. Berry’s rings and watch; that when Mrs. Berry was seated in the
The judgment and order denying motion for new trial are affirmed. The attempted appeal from the order denying motion to set aside the information is dismissed.
Wood, J., and Vallée, J., concurred.
A petition for a rehearing was denied September 23, 1948, and appellant’s petition for a hearing by the Supreme Court was denied October 11,1948.