[83 Ariz. 194] Lawrence Ollason, Tucson, for appellant.
Robert Morrison, Atty. Gen., Raul H. Castro, County Atty., and Jack I. Podret, Deputy County Atty. of Pima County, Tucson, for appellee.
UDALL, Chief Justice.
Jesse James Dutton, defendant-appellant, was informed against, tried and convicted by a jury of the crime of robbery, a felony (A.R.S. § 13-641). The court rendered judgment of conviction against defendant and imposed an indeterminate sentence of not less than 10 nor more than 18 years in the state penitentiary. This appeal followed. At the trial defendant was represented [83 Ariz. 195] by an attorney other than the one who, by court appointment, now represents him on this appeal.
At the close of the case defense counsel moved for an instructed verdict upon the general grounds that the State had failed to prove the necessary elements of the crime of robbery. A denial of this motion is the basic error assigned on this appeal. Specifically the defendant contends that the evidence did not sufficiently identify him as the perpetrator of the crime so as to warrant the court submitting the question of his guilt to a jury.
At the trial defendant elected, as was his right, not to take the witness stand and
other than a few additional questions directed to the man allegedly robbed no other witnesses were called to testify in his behalf, hence there is no particular conflict in the evidence.
The evidence tending to identify defendant as the robber is as follows: Richard Gorby, a teacher in the Tucson public school system, who had part-time employment at the Desert Beverages store in Tucson, testified that at about 10:45 p. m. on July 31, 1956, two men, one described as being tall and the other short, entered the store where he was the sole attendant. The tall man asked for a bottle of packaged liquor on display and, as the witness came from behind the counter, the tall man pulled a gun and commanded that he lie on the floor; immediately thereafter he was told to get up and open the cash register which he did-then he resumed a position on the floor where the short man tied him up. The intruders then rifled the cash register and fled.
The following excerpts from Gorby's testimony will disclose the manner and extent of his identification of defendant, viz.:
'Q. Mr. Gorby, I ask you to look at the man seated at the table directly behind me, with the blue coat and blue striped shirt upon him, and I ask you if that is the man that you called the tall man? A. Well, I am quite sure that is the man.
'Q. Now, between the time of the robbery and today, have you seen that man before? A. Well, I have seen him twice before. I was asked to go to the jail and see if I could identify the man that held me up, from a group of other men, and I saw him at that time.
'Q. Did you pick this man out as the man who was in your store? A. Yes.
'Q. Where, else did you see him? A. At the preliminary hearing I saw him.
'Q. Did you identify him there as the man who entered the store and held a pistol on you that evening? A. [83 Ariz. 196] Yes, I did identify him in the same way I have here.'
And upon cross-examination he further stated:
'Q. You also stated there that if it meant a man going to the penitentiary that you couldn't say it was him, didn't you? A. I don't believe those were my words.
'Q. What were your words? A. I believe I said if it were a matter of a lesser nature I would definitely state it was him, but since the man's freedom was involved, I would have to put it that other way; if it wasn't him, it was a man that looked just like him.
'Q. But you did state if it wasn't him it was a man that looked like him? A. Yes. * * *'
'Q. Now, summing this up, what can you say except that this man was tall and thin, that you could identify this man by? A. Well, I think when you are held up like that, probably the man's face and expression register more with you than actual physical measurements and things. It seems to me I remembered his face, which is the thing you remember about a person.
'Q. Prior to the preliminary, you had seen the man and you had seen him again. At none of those times immediately after, let alone this period of four months later, at none of those times you couldn't identify the man; he just looked like the man, isn't that right? A. I stated at the hearing I couldn't positively * * * I didn't like that word * * * I had a slight reservation. I ...