APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment affirmed.
Mr. Joe Conway, Attorney General, Mr. Thomas J. Croaff, Assistant Attorney General, Mr. James A. Walsh, County Attorney, and Mr. R. H. Renaud, Deputy County Attorney, for Appellee.
Mr. Harold J. Janson, for Appellants.
[61 Ariz. 494] STANFORD, J.
Appellants were convicted in the Superior Court of Maricopa County for the crime of robbery. The appellant Titus was sentenced to the penitentiary for a period of not less than five nor more than ten years; the appellant Wales was given a sentence of from seven to fifteen years.
Appellants submit three assignments of error: (1) That the court erred in admitting in evidence the guns found upon the person of defendants in their room in Los Angeles, California, because there was no connection shown between the gun used in the robbery and the guns found in California. (2) The court erred in giving its instruction on alibi. (3) That the prosecuting attorney in the trial of the cause made certain remarks that were prejudicial to the rights of appellants.
Appellants contended that neither of the two revolvers found in their room, one upon the person of one of them and one in the room, was identified as the weapon used in the crime committed, and quote the following from 22 C.J.S., Criminal Law, § 712, p. 1209:
"... To warrant the admission in evidence of an instrument or weapon as the one with which the crime was committed, a prima facie showing of identity and connection with the crime is necessary and sufficient;...."
[61 Ariz. 495] Among the other cases referred to by appellants is the case of People v. Smith, 55 Cal.App. 324, 203 P. 816, 819, where, in that case there is a quotation from Wharton's Criminal Evidence, Vol. 2, Par. 915:
"'Circumstances, trivial in themselves, take on an exaggerated character the moment that suspicion is directed toward a person accused of a crime; and, because of this tendency, no circumstances should be admitted that cannot be shown to have a direct and obvious relevancy to the crime charged.'"
In this respect the appellee submits the case of Adkins v. State, 42 Ariz. 534, 28 P.2d 612, 616. This is a case where the appellant was charged with the crime of kidnaping, and where the officers investigating the abduction came across accused's home while in pursuit of persons who had fired upon them, and while in the home found a flash light, cartridges and other articles. Our court in that case said:
"... The officers were, therefore, lawfully within the home of appellant, and upon such lawful entry they had the right to make a reasonable search for any articles
used in the commission of the crime of shooting at the officers, and in such search if they found any article which they believed to have been used in the commission of the crime of kidnaping, they had the right to take possession of ...