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District Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ancil STATUM, Defendant and Appellant.

Cr. 3412.

Decided: November 14, 1963

Peter G. Fetros, Sacramento, under appointment by Third Dist. Court of Appeal, for appellant. Stanley Mosk, Atty. Gen., by Doris Maier, Asst. Atty. Gen., Sacramento, for respondent.

Defendant, Ancil Statum, appeals from a judgment based on a jury's verdict of guilty to charges of (1) robbery in the first degree; (2) grand theft (auto); (3) attempted murder; (4) two violations of section 12021 of the Penal Code (possession of a gun by an ex-convict) and a finding of prior conviction.

Appellant was represented at the trial by the public defender's office. Notice of appeal was filed October 30, 1962. Upon appellant's request counsel was appointed to represent him on this appeal. A brief has been filed for appellant, wherein the following contentions are made: The evidence is not sufficient to support the verdicts; the sentences are excessive; and two witnesses, Theophilus Spooner and Charles Miller, were coerced into testifying to appellant's detriment by promises of light sentences.

The evidence shows that on June 28, 1962, at about 11 p. m., a Chevrolet was driven into a service station on Florin Road in Sacramento County containing two men who were wearing stockings over their heads. The driver got out of the car with a gun in his hand and demanded money. He was given $180. He also took a Russian Mauser automatic that was under a desk in the station. He returned to the automobile and drove off. Although the attendant was unable to identify him, he did generally describe him as being a colored man about 20 years of age, weighing about 180 pounds, and approximately 6 feet in height. The attendant recorded the license number of the automobile. The car had been stolen, the owner having missed it on June 28th. An accomplice, Charles Miller, the other man in the car, testified as follows: On June 28th at approximately 11 p. m. appellant, driving a Chevrolet, stopped and picked him up in a suburb of Sacramento. Appellant was wearing gloves and cautioned the accomplice not to touch anything in the car, saying the car was stolen. The accomplice produced two guns and appellant suggested a robbery. Wearing stockings over their heads, they drove to the aforesaid service station where appellant got out, returning about 5 minutes later. He handed the accomplice $90 as being one-half of the amount taken. The accomplice, prior to the trial herein, had been convicted of first degree robbery for his participation in the robbery and was confined in prison at the time of trial. There was other evidence in corroboration of the accomplice's testimony, but there is no point in relating it in detail except to add that when appellant was being returned to Sacramento from Los Angeles, where he had been apprehended, he admitted robbing the service station, getting $180, and dividing it with the accomplice. He further said that he had obtained a gun at the service station, which he later used in connection with the next event we are about to relate.

On July 6, 1962, at approximately 12:15 a. m., appellant drove a car to the same station he had robbed on June 28th. The attendant locked the door, turned off the station lights, and started to call the sheriff's office when a man appeared at the doorway and started shooting. The attendant, armed with a borrowed gun, started shooting back. Both the attendant and his assailant received bullet wounds. One Theophilus Spooner, an accomplice, who was in the car with appellant, and who had plead guilty to aiding and abetting appellant in respect to the July 6th events previously to appellant's trial, testified that on that date he and appellant drove to the service station where appellant got out, stating that he was going to rob the place. Appellant directed Spooner to drive up the street past the station and park. A few minutes later Spooner heard shots and then appellant returned to the car and they drove away. Appellant's arm was bleeding. A doctor testified that 5 days later he removed a bullet from appellant's left shoulder. To the officer returning him from Los Angeles to Sacramento appellant admitted going to the service station on July 6th to rob it, and said that when the lights of the station were turned off he proceeded toward the door, at which time the attendant fired at him and he started shooting and in the interchange of shots he was hit in the shoulder. There was other evidence supporting the verdict of guilty of attempted murder, and the accomplice's testimony was, as has been seen, adequately corroborated.

Defendant took the stand and denied all the charges and repeatedly asserted that the testimony connecting him with the charges was false. He testified that on the date in question he was playing cards in another area and that during that time there was some shooting and he was accidentally hit. He offered no evidence in support of his alibi.

An examination of the instructions given by the court shows that they were fair to the appellant, full and correct. The testimony fully supports the verdict on all counts and the proof of prior conviction is undisputed.

For the reasons given, the judgment appealed from is affirmed.

VAN DYKE, Justice pro tem.

PRICE, P. J., and SCHOTTKY, J., concur.

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