Sparkman v State

Sparkman v State
1939 OK CR 111
93 P.2d 1095
67 Okl.Cr. 245
Decided: 09/08/1939
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Indictment and Information-Sufficiency of Information In General. An information is sufficient which states the offense clearly and distinctly in ordinary and concise language without repetition, in such manner as to enable a person of common understanding to know what is intended.

2. Same-Exact Words of Statute Defining Crime Need not Be Used. The exact words of a statute defining a crime need not be used in an indictment or information charging it, but any words clearly and intelligently setting forth the offense are sufficient.

3. Same-Sufficiency of Information in General. An information which informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that if convicted or acquitted he will be able to defend himself against any subsequent prosecution for the same offense, is sufficient.

4. Same. The true test of the sufficiency of an indictment or information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.

5. Robbery-Robbery With "Use of Firearms or Other Dangerous Weapons Robbery as Included Offense. Robbery committed "with the use of firearms or any other dangerous weapons" (Penal Code, § 2543, 21 Okla. St. Ann. § 801), includes robbery as defined by Penal Code, § 2542, 21 Okla. St. Ann. § 791, and where the evidence on the part of the state clearly establishes all the essential elements of robbery so defined, the defendant may be convicted of the included offense.

6. Robbery-Crime Committed Though Title to Property in Third Person. To constitute the crime of robbery, it Is not material whether the title to the property is in the person from whom the property is taken or in another.

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7. Same-Force and Violence Must Be Concomitant With Taking. The force and violence which is essential to the crime of robbery must be concomitant with the taking of property from the person or the possession of another. Whether that person was the owner or legal custodian of the money or property so taken is immaterial, so far as the charging of the offense is concerned.

8. Indictment and Information-Sufficiency of Information Bringing One Charged Within Class Against Which the Penalty of Statute Is Directed. An information which brings one charged within the class against which the penalty of the statute is directed is sufficient.

9. Trial-Office of Opening Statement-Harmless Error in Statement of Incompetent or Immaterial Matter. An opening statement is, and purports to be, no more than am outline of the state's theory and the evidence expected to be offered in support. The statement of incompetent or immaterial matter affords no ground for reversal unless it appears that the statement was manifestly prejudicial.

10. Evidence-Evidence of Other Related Offenses. Evidence which tends to throw some light upon the guilt of defendant, and which has some logical connection with the crime charged, is not inadmissible because it may tend to show him guilty of some other crime.

11. Robbery-Evidence of Defendant's Identity as Participant In Crime Held Sufficient. Evidence of defendant's identity as one of those participating in the commission of the robbery, held sufficient.

12. Same-Conviction for Robbery With Firearms Sustained by Evidence. In a prosecution for robbery with firearms, con jointly committed, evidence considered and held sufficient to support the verdict and judgment of conviction.

Appeal from District Court, Delaware County; Ad V. Coppedge, Judge.

A. J. Sparkman was convicted of robbery with firearms, and he appeals. Affirmed.

Appellant, A. J. Sparkman, was convicted in the district court of Delaware county of the crime of robbery with firearms, and sentenced to serve a term of 18 years' imprisonment

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in the state penitentiary, upon an information filed in said court on November 29, 1937, in which A. J. Sparkman, Turner Linam and Cliff Beck were jointly charged with the crime of robbery by firearms, alleged to have been committed on the 24th day of October, 1937, in Delaware county.

The testimony in the case was substantially as follows:

Mrs. Lem Swicegood testified:

"I live south of Colcord. I was visiting in Brentwood, California, and arrived back here October, 1937, I came back with Turner Linam, Pearl Linam, his sister, A. J. Sparkman, Genie Schuster and Boyd Swicegood, my son.

The automobile was a gray Chevrolet, two-seated car, equipped with a radio, I noticed a long gun in the car, don't know whether it was a rifle or shotgun, I gave Turner Linam $30 to help pay the expenses."

Ruth Foyt testified:

"I live at Colcord, I saw this defendant, A. J. Sparkman, with Pearl Linam at church, and I saw Cliff Beck at Mrs. Roy Woods, his sister, who lived about a mile and a half from the church. I left for home about 8 o'clock that evening with her sister, Pansy. Cliff Beck was there at that time; I next saw him at the church, about 10 o'clock and Turner Linam was there; that was Sunday, October 24, 1937."

Mrs. Roy Woods testified:

"I have lived around Colcord all my life. I have known Mr. and Mrs. Lee Linam, parents of Turner Linam, for seven or eight years. On Sunday, October 24, 1937, Turner Linam came to my house between sun down and dark, my brother Cliff Beck was drinking and Linam came to see if he had made it home all right. Between 7 and 8 o'clock that night Turner and Cliff went off."

Lon Burcham testified:

"I live near Colcord, north and west, the road from my place to Colcord goes by the home of Lee Linam, on Sunday, October 24th, I saw Turner Linam and his sister,

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Pearl, Cliff Beck and A. J. Sparkman at church there that night, and a black hair girl they called Genie was with them; that after church was over they all came out together. I should judge the revival meeting was over 10:30 or 11 o'clock."

Bud Simms testified:

"I live at Colcord, have lived in that community for 26 years, Turner Linam lived there and we grew up boys together, he was gone quite a while and came back in October, he came to my house Sunday night, the latter part of October, last year, I don't know the date exactly. I had been asleep. He said he just wanted to borrow a gun. I told him I did not have any gun except my father-in-law's and I would not loan it. He said he was going out on a deal or party and would have the gun back by daylight, I heard about some old German woman being robbed on Tuesday after he was at my place Sunday night."

Walter Marshall testified:

"I live three and one-half miles east and one north of Colcord; Turner Linam, and Cliff Beck were at my house Sunday night, October 24, 1937, about 9:30 or 10 o'clock; Cliff said he wanted to borrow a shotgun, I told him I had sent to town the day before and got some shells so I could borrow my dad-in-law's gun to go rabbit hunting, he said, would I sell him the shells, I said all right, and he asked Turner to pay for the shells, and Turner handed me a quarter for the shells; Turner said, 'We have a drink out to the car, if you want it.' We went out to the car and Turner handed me a fruit jar, and I took a couple of drinks. I saw an old shotgun laying in the back of the car; another fellow was sitting in the car; I did not speak to him, and never saw him before; the radio was playing in the car; Cliff Beck lives over a mile from me, in a general course west; these Brock women live east from me. That while Turner Linam, Cliff Beck and this stranger were at my place, Linam and Beck said if anyone asked about them to say that he had not seen them. They were all three there in the car."

Monroe Greer testified:

"I live down by Center Point schoolhouse, about one mile from where Antye and Anna Brocker live. On Sunday

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night, October 24th, I went by their place, going west in a car, I noticed a car headed west in front of their place; I noticed the license plate was blinded with a white rag tied over it, the car-lights were on, but I could not see any person in it, I think it was then about 11 o'clock."

Mrs. Anna Brocker testified that she was 55 years of age; that she lived on Route 2 from Coleord in Delaware county, with her mother, who is 83 years old; that they had lived in that community 17 years. On Sunday night, October 24th, three young men came to their house. The thing that woke her up was a dog coming from the front. She had some young chickens there and thought the dog was after them. She chased him over the fence. When she came back she looked at the clock and it was 11:30. She went back to bed. Then a man came and knocked on the door once or twice. She went to the door and opened it. He said his car was dry and asked for water. She said she would get the water but had no pail. He said he had no pail, and asked her if she had no pail at all. She answered that she had a cream can, and that she would get the water. Then she went out to the pump; that the little one in front took the water slowly. They could not get the gate open and they jumped over the fence. They threatened her; they said they did not come for water, they came for money. She told them she had only 50 cents; they said they did not come for that; they came for the money; they asked if there were any men in the house. She told them there were no men in there, only her mother and herself. They wanted the lamp. She said she would light the lamp, but they would not let her. They found the lamp and lit it. Two of them were masked. The one that first came to the house and asked for the water had no mask on. When the lamp was lighted, they took it in the bedroom and set it on a lard can and began to search for the guns and for the money. While they searched she sat on the bed. She looked through the window and saw another car come from the west, then a man knocked her down on the bed and hit her three or four times. She

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stayed on the bed, one sat on the floor with the gun. He said he would like to search a while. She told him there was $10 out there, in the coffee pot, but he could not understand. Her mother came in from her bed and he slapped her, witness cried out, "No, oh no, you don't; ma is 83 years old." Then he wanted to find the coffee pot, and found it under the bed. He found the $10 in the can and handed it over to the one who sat in front-he pulled another bill out, and said, "You lying bitches got more money"; then he searched again in the coffee pot, and took some papers out and got them all over the floor, then he got the pennies in there in a paper sack.

That before they got the $10 they tried to burn the bed. Her mother said, "Let me out, let me out, they should not do that." They took a match and lighted a piece of paper doubled up and held it to her toes, she had not put on her shoes. After they knocked her down, her mother said her daughter had to work for her and they should not hurt her. Witness thought they were going to shoot her. They knocked her down with the gun, and said they were going to get the money or burn the house, and they built a fire on the floor with the kindling she had by the cook stove. They stood her up a little ways off. The fire burned a place in the floor, and one of them went out to the car to get some gasoline. They said they had just as well lock "the bitches up and put fire in it." Then they started to search again. One got the big square box and got pretty close to the money, and she thought it was no use to lose her life for the money and handed it to him. He sat there by her and counted the money, $34 stacked right before her. Two of them had on masks and were sitting on the floor with the lamp and she sat there and watched them count the money; that a little bit of the money was hers and the rest was her mother's old age pension money that her mother was saving to buy a horse and to fix the barn. She told them it was her ma's pension money saved to buy a horse, and they said, "To hell

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with ma." They were drunk and they kept on searching for over an hour; one hit her with the gun and one of them, she could not tell which, said, "You have five or six thousand dollars in this house." One said they were there the summer before and she had a gun, they searched and found it. They said they ought to mark her ears, then they knocked her on the head with the gun; that she gave up the money because she thought they would kill her. That she looked at the clock when they left and it was six minutes past one. She said the three men who committed the robbery were Beck, Sparkman and Linam. She described them by their bodies. That when they were leaving they told her not to say anything about it.

On cross-examination she stated that Wes Cox, a young man, had lived with them; that she had trouble with him and made him leave. He went back to Arkansas ten or twelve miles from where she lived. She testified about the officers bringing the men to her place for her to identify; that she knew them when she saw them. Asked why she did not tell about this robbery, she answered that from what they said she was afraid her place would be burned.

Frank Bryant testified that he had been a deputy sheriff over two years; that he had orders from the county attorney to go there and investigate the robbery; that was two days after the county attorney and sheriff had been there. He had known the Brocker women some time. He talked to both of them. He found the kind of a car they had and found that Turner Linam was in the county with that kind of a car, and had a stranger with him, and he had information that they had left the country, and Cliff Beck and two girls, a strange girl and Turner Linam's sister, went with them. Afterward he heard they were in Oakland, Cal.; with a fugitive warrant he went to Oakland, called at the police department. A police commissioner went with him to a rooming house, where they found Cliff Beck. This apartment was occupied

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by Turner Linam's wife, a cousin to Cliff Beck. He asked Cliff Beck about Sparkman and Turner Linam. At first he denied knowing where they were, then told them he had the address and took it from his pocket. He took him with them and there they found A. J. Sparkman, Turner Linam, Pearl Linam and a girl called Genie Schuster, and another man and woman. They found a suitcase full of liquor, two slot machine money boxes and a .32 pistol. They arrested and returned from California with these defendants. He remembered asking Sparkman how long he had been in California, and what he had been doing. Sparkman said he had been there for two or three months; that he left the McAlester penitentiary and went to California. He asked him about waiving extradition and Sparkman said he was a parolee from McAlester penitentiary; that he had been working with Turner Linam in California as a roofer, and mentioned that he had returned to Oklahoma with Turner Linam on a visit. A lady named Swicegood, Turner Linam and a girl named Schuster, and Mrs. Swicegood's son came with them. Then he told about taking the defendants to the Brocker home, and when they went there only the young one was there. Mrs. Brocker talked to them some first, and then said, "That is them."

Lon Burcham, recalled, testified that when these folks came from California they were riding in a Chevrolet two-seated closed car with a radio aerial that went back over the car, with a California license tag.

There was no testimony offered on the part of the defendant.

The following stipulation was filed in said case on January 24, 1938:

"Stipulation:

"It is agreed and stipulated by and between Hendrix Wolf, County Attorney, and A. C. Sinclair, Attorney of record, for Turner Linam, and A. J. Sparkman, that a

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certain .16 gauge Winchester pump shot gun, model 1897, Serial No. 365042 may be introduced as an exhibit in the trial of said A. J. Sparkman, and Turner Linam, on a charge of Robbery with Firearms, now pending in the District Court of Delaware county and numbered 878. It is further stipulated that the aftidavit of Tom Linam which was made and subscribed in the presence of both of the subscribing attorneys may be offered as the evidence of said Tom Linam in said case by either side.

"W. Hendrix Wolf. A. C. Sinclair.

"State of Oklahoma County of Delaware. ss.

"Affidavit:

"Tom Linam of lawful age first being duly sworn on his oath deposes and says: That I am 29 years of age and a first cousin of Turner Linam. I live at 1207 East 2nd St., Santa Ana, California, and did during the months of October and November, 1937. About the first or second of November, Turner Linam, A. J. Sparkman and Cliff Beck, Pearl Linam, a girl named Jean, and Evert McClelland came to my home one night. Turner Linam was making preparation to stay at my home that night and went to his car to secure bed clothes. When he returned he had two quilts or two blankets I don't know which, and a .16 gage pump shotgun. Turner said this or this in substance: 'Do you want a good gun,' and I said 'Sure,' and he said 'I'll give you this one, it has two screws out of it and it won't work until it is fixed; the gun has been in the car and they have lost out.'

"He gave the gun to me at that time and I later turned this gun over to Logan Jackson, Sheriff of Santa Ana, California.

"Tom Linam.

"Subscribed and sworn to before me this 24th day of January,1938.

"(seal) James I. Monroe, Court clerk.

"Witness: A. C. Sinclair.

"W. Hendrix Wolf."

When the state rested, the defendant also rested his case and moved the court to direct a verdict of not guilty,

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for the reason that the state's evidence was wholly insufficient to sustain the allegations of the information. Which motion was overruled. Exception.

A. C. Sinclair, of Jay, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.

DOYLE, P. J. Appellant, A. J. Sparkman, Turner Linam, and Cliff Beck were jointly informed against for the crime of robbery with firearms, alleged to have been committed in Delaware county on the 24th day of October, 1937.

The information charged that said defendants did willfully, unlawfully, forcibly, wrongfully and feloniously, while acting together and in concert, make an assault upon and against the persons of Antye Brocker and Anna Brocker, with a firearm, to wit: A shotgun, held in the hands of said defendants, thereby putting them in fear of immediate injury to their persons, and while said Antye Brocker and Anna Brocker were under the influence of said fear the said defendants did then and there willfully, unlawfully, forcibly and feloniously take from the possession of the said Antye Brocker and Anna Brocker about $53, lawful money of the United States, without their consent and against their will, with the felonious intent of said defendants to convert the same to their own use and benefit and permanently deprive the owners thereof.

A severance was granted and the defendant Sparkman was found guilty of robbery with firearms as charged in the information, but the jury was unable to agree upon the punishment.

His motion for new trial was on February 9, 1938, overruled; thereupon the court rendered judgment and sentenced said defendant to confinement in the state penitentiary at McAlester for the term of 18 years. From this

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judgment he appealed by filing in this court on August 8, 1938, a petition in error with case-made.

The assignments of error are:

"1. The information is insufficient, indefinite and duplicitous.

"2.. The county attorney made such improper prejudicial statement and argument as to constitute reversible error.

"3. Improper evidence of defendant's character and former conviction was permitted to go to the jury.

"4. The evidence is insufficient to sustain a conviction."

The alleged errors will be taken up in the order stated.

The record shows that when the case was called for trial, on February 9th, the defendant was by the court permitted to withdraw his plea of not guilty for the purpose of presenting a demurrer to the information. Thereupon the defendant demurred to the information upon the following grounds:

"1. That said information does not charge a public offense against the laws of the state of Oklahoma.

"2. That said information is so vague, indefinite and uncertain that the defendant is not apprised of the offense charged, or with what offense he is sought to be charged.

"3. That said information attempts to charge two or more offenses against the laws of Oklahoma, and is duplicitous."

The Code of Criminal Procedure provides:

"The indictment or information must be direct and certain as it regards:

"1. The party charged.

"2. The offense charged.

"3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense." Sec. 2884, 22 Okla. St. Ann. § 402.

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"When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material." Sec. 2888, 22 Okla. St. Ann. § 406.

"The words used in an indictment or information must be construed in their usual acceptation, in common language, except words and phrases defined by law, which are to be construed according to their legal meaning." Sec. 2889, 22 Okla. St. Ann. § 407.

"The indictment or information is sufficient if it can be understood therefrom: * * *

"6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended." Sec. 2891, 22 Okla. St. Ann. § 409.

"No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits." Sec. 2892, 22 Okla. St. Ann. § 410.

We think the information in this case is sufficient under the requirements of the foregoing provisions of the Code.

The true test of the sufficiency of an information is not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet. Warren v. State, 24 Okla. Cr. 6, 215 P. 635.

The language of the statute defining robbery is as follows:

"Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by

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means of force or fear." Penal Code, § 2542, 21 Okla. St. Ann. § 791.

The prosecution in this case was based on chapter 44, Session Laws 1925, which is as follows:

"Any person or persons who, with the use of any firearms or any other dangerous weapons, attempts to rob or robs any person or persons, or who robs or attempts to rob any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night, shall be guilty of a felony, and, upon conviction therefor, shall suffer punishment by death, or imprisonment, at hard labor, in the State Penitentiary, for a period of time of not less than five years, at the discretion of the Court, or the jury trying the same." Penal Code, § 2543, 21 Okla. St. Ann. § 801.

The gravamen of the offense consists in the taking by violence or by putting in fear, with the use of any firearm or any other dangerous weapon, the money or personal property of another in "any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night." Whether that person was the owner or the legal custodian of the money or property so taken is immaterial so far as the charging of the offense is concerned.

This court in Newton v. State, 56 Okla. Cr. 391, 40 P.2d 688, held that:

"Section 2543, Okla. Stat. 1931 (chapter 44, Sess. Laws 1925, amending chapter 85, § 1, Sess. Laws 1923), provides that the crime of robbery may be committed against a business house or banking institution, under the conditions therein stated, in the same way, as it may be committed against a person."

In the opinion it is said: "It is argued this is insufficient in not alleging the money was taken from a person who attended the bank at the time of the taking and does not allege the money was taken from the person

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and immediate presence of Heiland. Reliance is mainly on the case of Ward v. State, supra [34 Okla. Cr. 296, 246 P. 664]. The robbery in that case was of a person. It was alleged one person was put in fear, the property taken from another, and belonged to a third person. It was so worded that even the court could not be certain what was intended, and it was held the information was too indefinite and uncertain to apprise the accused of the offense sought to be charged." And see Randall v. State, 33 Okla. Cr. 262, 243 P. 983.

In Robards v. State, 37 Okla. Cr. 371, 259 P. 166, 168, it is said: "The ownership of the money taken was of no particular importance." Holding: "Proof that property is taken from the possession or immediate presence of another having the custody or control of the same constitutes robbery, although the actual ownership of the property may have been in some third person."

In Dickson v. State, 26 Okla. Cr. 403, 224 P. 723, 726, it is said:

"We think the information sufficiently definite and certain on the subject of ownership of the property taken to inform the defendant that he was not accused of taking his own property, but that he was accused of taking property which was in the possession of A. C. Clothier, the cashier of the Citizens' State Bank of Salt Springs, Okla., with intent to convert such property to his own use. In law 'convert' conveys the idea of a dishonest appropriation. The information is sufficient in this respect."

In Winfield v. State, 18 Okla. Cr. 257, 191 P. 609, the defendant was charged with robbery by the use of firearms and his punishment assessed at imprisonment for five years in the penitentiary. In that case we held that:

" Where the evidence on the part of the state clearly establishes all the essential elements of robbery in the first degree against the defendant on trial, he may be prosecuted and convicted of that included offense."

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In Dickson v. State, supra, this court held:

"In order to be subject to the objection of duplicity, an indictment or information must charge two distinct and complete crimes, for each of which a separate punishment may be inflicted, and each of which would withstand a demurrer for want of sufficient facts to constitute a crime."

It is well settled that the exact words of a statute defining a crime need not be used in an indictment or information charging it, but any words clearly and intelligently setting forth the offense are sufficient.

An information which brings the one charged within the class against which the penalty of the statute is directed is sufficient. In our opinion the information sufficiently charged the crime of robbery with the use of firearms, and the demurrer thereto was properly overruled.

The second contention is that the court erred in overruling the defendant's motion to declare a mistrial, because of improper and prejudicial remarks of the county attorney in his opening statement to the jury, wherein he stated:

"Down East of Colcord was a boy named Cliff Beck -first though, Turner Linam, was out in California, and while out there Turner Linam met up with this man A. J. Sparkman, who had been paroled from the Oklahoma State Penitentiary.

"The Court: The defendant's objection is sustained.

"Mr. Sinclair: Comes now the defendant, and moves the court to declare a mistrial in this case because of prejudicial remarks of the county attorney, in reciting the previous character of this defendant to the jury, in his opening statement.

"The Court: Gentlemen of the jury, the statement of the county attorney, a part of it was a little too strong; he went too far; a part of it was improper, it probably wouldn't have been if he had been a little more cautious in the use of his words. Now the reference about this man

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being a convict, or having been in the pen, he shouldn't have said that, and he wouldn't be permitted to prove that, under certain circumstances."

The court then asked each juror: "Is your mind still free and open to decide this case according to the law and evidence?" Each juror answered: "Yes, sir."

The court then announced: "The defendant's motion asking the court to declare a mistrial in the case is denied." Exceptions.

An opening statement is to advise the jury concerning the questions of fact involved, so as to prepare their minds for the evidence to be heard. The scope of the opening statement should be limited to getting before the jury a detail of the testimony expected to be offered.

In Guest v. State, 56 Okla. Cr. 129, 34 P.2d 1082, the first syllabus is:

"An opening statement is, and purports to be, no more than an outline of the state's theory and the evidence expected to be offered in support. The statement of incompetent or immaterial matter affords no ground for reversal unless it appears that the statement was manifestly prejudicial."

The second syllabus is:

"Evidence which tends to throw some light upon the guilt of defendant, and which has some logical connection with the crime charged, is not inadmissible because it may tend to show him guilty of some other crime."

From the evidence it appears that when this defendant was arrested as a fugitive on an extradition warrant in California, he made the voluntary statement that he was out on parole from the Oklahoma Penitentiary at McAlester.

This was an admission against interest, and as such was competent and admissible as evidence on the trial of the case.

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The record also shows that it was stipulated and agreed that the affidavit of Tom Linam, of Santa Ana, California, should be offered as the evidence of said Tom Linam, wherein affiant states that about the first or second of November, Turner Linam, A. J. Sparkman and Cliff Beck came to his home in California.

This was also an admission against interest to the effect that this defendant at the time arrested was a fugitive from justice and admissible as such.

From what has been said it follows that the court did not err in overruling the motion to declare a mistrial.

It is also contended that the county attorney in his argument to the jury made the following improper statement:

"The defendant made a statement to Frank Bryant that he was out on parole from the Oklahoma State Penitentiary. I guess he knew he was coming back any way." There is no merit in this contention.

The final contention of counsel is that the verdict is not sustained by sufficient evidence, in that the evidence was insufficient to establish the identity of the defendant as one who participated in the commission of the robbery.

The identification of the defendant by the witness Anna Brocker as one of the three men who committed the robbery was positive. This, together with the other undisputed facts and circumstances in evidence, was sufficient identification to sustain the verdict.

In People v. Wilson et al., 76 Cal. App. 688, 245 P. 781, 785, it is said:

"In Bowlin v. Commonwealth, 195 Ky. 600, 242 S.W. 604, the identification, held to be sufficient, was made from a recognition of the defendant's voice. Nor is it necessary that the identification be made in positive terms by

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Any of the witnesses. A conviction may be sustained, though the witnesses decline to swear positively, and testify merely that they believe the accused is the person whom they saw commit the crime. Thus in Commonwealth v. Cunningham, 104 Mass. 545, the witnesses would not swear that they prisoner was the man they saw on the stolen wagon, but that 'he resembled him.' There the court said:

" 'Upon this question of identity, the evidence offered was all of it competent, and proper for the consideration of the jury. It is impossible to say that it had no tendency to convict the defendant. Its sufficiency was to be estimated and weighed exclusively by them.'

"To the same effect are People v. Rolfe, 61 Cal. [540] 541; People v. Franklin, 46 Cal. App. 1, 188 P. 607; State v. Franke, 159 Mo. 535, 60 S.W. 1053."

It is apparent from the record in this case, and it follows from what has been said, that the assignments of error relied upon for a reversal of the judgment are without merit.

The testimony in the case overwhelmingly points to the guilt of the defendant, and nothing short of fundamental error would justify a reversal of the judgment.