Opinion
Docket No. 382.
March 18, 1939.
APPEAL from a judgment of the Superior Court of San Bernardino County and from an order denying a new trial. Charles L. Allison, Judge. Affirmed.
The facts are stated in the opinion of the court.
Albert D. Trujillo for Appellants.
Earl Warren, Attorney-General, and Paul D. McCormick, Deputy Attorney-General, for Respondent.
This is an appeal from an order denying a motion for new trial and from the judgments pronounced on defendants after a verdict finding them guilty of robbery in the first degree.
Defendants urge as grounds for reversal of the order and judgments (1) that the evidence is insufficient to support the verdict and judgments, (2) an error of law in admitting evidence, (3) errors in refusing to give instructions to the jury requested by them.
[1] Defendants were convicted on circumstantial evidence.
On the evening of November 21, 1938, Pete Gallato, the victim of the robbery, went to the home of Rodriquez and collected rent. Rodriquez was in the house and knew of this collection. Gallato lived near the Rodriquez residence.
At about 9:15 o'clock on the same evening, Gallato, hearing a noise outside his house, opened his back door. He was beaten over the head and robbed of fifty-six or sixty-six dollars. His wounds bled profusely and required about thirty-four stitches to close them. A neighbor saw two men running from the scene of the robbery.
Blood was found on the clothing of both defendants and on the shoes of Rodriquez. The blood on Rodriquez's clothing was of the same type as that of Gallato and of a different type from his own. A mask was found in the pocket of Rodriquez's clothes at the time of his arrest.
After their arrest both defendants made admittedly false statements concerning their whereabouts at the time of the robbery, and statements proved false in attempting to explain the blood on their clothing. When accusatory statements were made to Cayoza he did not deny, but evaded them.
This evidence, while circumstantial, supports the verdict and judgment. (See, People v. Barnett, 87 Cal.App. 243 [ 261 P. 1068]; People v. Costello, 87 Cal.App. 313 [ 262 P. 75]; People v. Crittenden, 14 Cal.App. (2d) 589 [ 58 P.2d 680].)
[2] Defendants complain of a ruling of the trial judge admitting in evidence the mask found in Rodriquez's pocket at the time of his arrest. They argue that such masks were sold in stores and frequently were worn at Hallowe'en parties shortly before the robbery. This argument goes to the weight and not the admissibility of the evidence.
[3] Complaint is made of the refusal to give a number of instructions requested by defendants. The subject matter of all these instructions was fully covered by other instructions given by the trial judge. Where instructions given are correct it is not error to refuse other instructions covering the same subject matter. ( People v. Costa, 137 Cal.App. 617 [ 31 P.2d 248].)
The judgments and order are affirmed.
Barnard, P.J., and Griffin, J., concurred.