Defendant was charged with (count I) violation of section 211, Penal Code, robbery, and (count II) violation of section 217, Penal Code, assault with intent to commit murder. A jury found him guilty of the robbery charge, determined to be first degree, and of assault with a deadly weapon, an offense included within the count II charge. Defendant appeals from the judgment of conviction and from an order denying a new trial.
1. Were plaintiff's Exhibits 8 and 9 (certain portions of the hospital records) admissible under sections 1953e-h, Code of Civil Procedure (Uniform Business Records as Evidence Act)?
2. Was evidence of defendant's financial condition admissible?
3. Alleged error in striking answer of witness Quigg.
5. Alleged misconduct of the district attorney.
6. Refusal of instruction on misfortune.
7. Alleged abuse of discretion in denying new trial.
Defendant originally pleaded not guilty and not guilty by reason of insanity. Prior to trial the court appointed two alienists to examine defendant as to "his insanity." Their report found him sane. After conviction defendant withdrew his plea of not guilty by reason of insanity. At the trial the main issue was defendant's mental state at the time of the alleged crimes, defendant attempting to prove a mental state covering complete blackout, irresistible impulse, and lack of specific intent. While, of course, we must take the evidence and the reasonable inferences therefrom most favorable to the verdicts, it is advisable, to get the feel of the case, to set forth the factual evidence as it came to the jury. Most of the evidence concerned defendant's mental state. The reporter's transcript contains 1,475 pages, of which 98 pages covered plaintiff's case in chief.
Joseph H. Falkowich, a taxi driver, testified that he was hailed by defendant in the San Francisco Presidio at the bus station at approximately 11:45 p.m. Defendant was wearing his United States Army captain's uniform on which there were rows of ribbons. Defendant asked to be taken to the 2500 block on Webster Street on top of the hill. Defendant got into the front seat. There was no conversation. When the cab neared the designated block defendant said to pull in. The driver did so and on reaching over to clear the meter noticed defendant holding a revolver on his lap in his right hand, pointed at the driver. Defendant then stated, "I hate to do this," but that he wanted some money. The driver gave defendant all the money he had, $25. Defendant took the money in his left hand, still holding the gun in his right. Defendant appeared to not want to get out of the cab so the driver asked either that defendant get out or let him get out. Defendant then said, "You won't get hurt, just go to the corner and turn right." Defendant said that probably the radio was on and the taxicab people would know that the driver was being held up. The driver assured him there was no radio in the car. The driver started up the car and from then on kept begging defendant not to
Plaintiff's next witness was John Quigg, an agent of the Sixth Army, Criminal Investigation Division. The next morning after the shooting he found a revolver hidden under the cover in a drainage ditch located about 10 feet from defendant's room at Letterman General Hospital. It contained five live bullets and an empty cartridge. That afternoon defendant was placed in a line-up with four other captains, all dressed in the same manner as defendant (defendant had taken all his ribbons off his coat that morning). Falkowich identified defendant as the one who had shot him. Lieutenant Lee of the San Francisco Police Department questioned defendant in Quigg's presence. Defendant denied committing the crimes, stating that the evening before he had been to a show, returned to his room, then went out for a cup of coffee and returned. Defendant knew nothing whatever about the incident in question. He stated he owned a revolver which was in his clothing locker at the hospital. When Lee informed him his gun had been found and that his story appeared to have certain loopholes, defendant changed his story. He stated that he had hailed the cab, got in and told the driver he wanted to go to the 2500 Webster Street block; that "he pulled a gun from beneath his coat and asked the cabbie for his money, and that the cabbie kept whimpering and whining about the situation; that finally he told the cabbie he was going to have to put him to sleep. He said that the next thing he knew he had shot the cabbie, and that he got
Lieutenant Lee then testified substantially as did Quigg. In more detail, he gave what defendant stated were his movements the preceding night. Even after Lee told defendant of evidence against him he still insisted his statement was correct; also he had not seen his gun for some time but believed it to be in his locker. When told that Lee had the gun and would have a ballistics test made to see if a test shot would compare with the bullet recovered from the driver, defendant then said, "Yes, I robbed him and I shot him." He further stated that after he had gotten the money from the driver, the latter was doing a lot of whining, pleading and crying, and "I said to him, `I will have to put you to sleep' ... then I shot him."
Plaintiff then called a police stenographer who read a statement taken from defendant the afternoon following the shooting at the office of the robbery detail. Defendant stated that about 11:30 p.m. he dressed and left his room to get a cup of coffee. He met some M.P.'s, talked to them, "got restless and went back and got the gun" from a culvert in back of the ward. He flagged a taxi, telling the driver to drive him to the top of the hill on Webster Street, the 2500 block. When they stopped there was when he drew the gun. The driver "surrendered" the money. Defendant made no demands. The driver saw the gun when he leaned over to switch off the meter. Defendant had the gun pointing at the driver. The latter was pleading, requesting defendant to let him go. He had a wife and family. Defendant told him to start driving again, then to turn right. The driver was afraid defendant was going to do him bodily harm. Defendant told him to pull in to the curb. The driver continued his plea. "To gain sufficient time to get him out of there, I told him I was going to put him to sleep for a little while ... I meant to hit him. He turned to the right and backed into the corner of the seat ... I don't know whether he moved or whether I moved or what, but I shot." The driver went out the left door, defendant out the right. The driver ran to the rear, calling for the police. Defendant ran to the front. As he reached the corner a car came towards him. He ran back to the taxi, pushed it to the corner, got
Defendant was his own first witness. He testified at length about physical injuries, particularly to his head, which he had received during and since childhood, his fondness for guns and hunting, his army service and experience, particularly his work as a night fighter during hostilities, the circumstances under which he received his many medals, the many times he had suddenly become unconscious (blacked out), the wounds he had received, and the number of hospitals he had been in. Although he had a severe headache condition for many years, it was in March, 1951, that he first started getting hospitalization for it. He was in the neuro-psychiatric ward at Letterman from May, 1951, to March, 1952. (The shooting occurred January 11, 1952.) His headaches got worse at night and he disliked being confined at night. Hence he was in the habit of leaving his room and going into some quiet neighborhood where he could see the city, just sit and sometimes go to sleep. His favorite place was a park at the top of the hill. He would have a feeling of frustration knowing that he had to do something, but not what. When he got up on a hill where he could see he felt better. Occasionally he would take a cab to get there. The 2500 block on Webster was one of the places he went to. In August, 1951, a friend in Kennewick, Washington, gave him the gun and a box of ammunition for it and asked him to have the gun fixed. He took it to gunsmiths in San Francisco but they could not fix it. He kept it in the wall locker of the ward, but because of his roommate he put it outside in the culvert. When he had the irresistible impulse to go to the top of the hill he always carried the gun with him,
On cross-examination, when asked if at any time during the incidents the night of the shooting he was unconscious at all, he replied, "I didn't have one of the regular." He was then asked, "I mean, you knew everything that was going on that night, didn't you? A. More or less, yes." He recalled in detail practically everything that occurred during the cab ride. While he recalled intending to put the driver to sleep because of his whining by hitting him with the gun, and recalled hearing the shot, the only thing he claimed not to recall was pulling the trigger and in a rather indefinite way he claimed not to remember asking for the
Mrs. Gorgol corroborated defendant as to certain of the incidents when he became unconscious and the development of his headaches, change of personality and other matters bearing upon his state of mind.
Two Army captains likewise testified to matters bearing on defendant's mental state. A gunsmith testified to the defective condition of the gun. Two psychiatrists and neurologists testified to the effect that defendant suffered from wanderlust epilepsy or epilepsy equivalent. This type of epilepsy is one in which it is very common for the subject to have an urge to leave his home or place of business. He is driven by the subconscious mind to do certain things and perform certain acts and is an automaton governed entirely by the subconscious mind. A common symptom of this epilepsy is the commission of robbery and other major crimes. In their opinion defendant was unable to and did not form an intention either to rob the driver or do him harm. An epileptic of this type could lose consciousness for a split second and yet remember everything which occurred except what happened in that split second. He would not even know that he had had the unconsciousness. In effect defendant's actions the night of the shooting were characteristic of defendant's epilepsy. Experts called by plaintiff gave opinions contrary to those of defendant's experts.
1. Hospital Records.
Defendant contends that plaintiff's exhibits 8 and 9 were erroneously admitted into evidence, first, because no proper foundation was laid for them, and secondly, because they contained hearsay and conclusions. These two exhibits were a part of the Letterman Hospital records. Defendant had subpoenaed the Letterman Hospital records. Defendant interrupted the cross-examination of defendant, stating that he had just noticed the custodian of those records to be present. Without calling the custodian, defendant asked that they be marked for identification. They were marked defendant's Exhibit B for identification. Thereafter they were first considered on the cross-examination of Dr. Tuchler, defendant's alienist, who had testified he had examined the
The next mention of the hospital records came when defendant showed the witness an electro-encephalographic report of June 8, 1951, which defendant stated was part of the Letterman records, and started reading from it. Plaintiff objected on the ground the record was not in evidence. Defendant stated he proposed showing the witness parts of these records. The court asked if the records were going to be admitted. Plaintiff said it wanted to examine them first. Defendant again stated he wanted to examine the witness on his interpretation of the records upon which he relied. Thereupon the court said that if the doctor relied upon certain portions of the records, the records should be in evidence. Defendant said he only wanted portions of them and if the prosecution wanted other portions, it could offer them if legally admissible. Defendant then read to the doctor the record of an electro-encephalographic examination and the conclusion therefrom, by whom made does not appear, and asked the witness to interpret it. Thereafter, defendant read into evidence the final summary, Ward 26, dated January 4, 1952, after asking the witness if he had seen it and used it. This report covers about three pages of the transcript, and gives defendant's history of injuries, complaints and treatment since admission to Letterman May 11, 1951.
The next use of any of the hospital records was by defendant in examining plaintiff's witness Colonel Clausen, a medical doctor and senior resident physician at Letterman. Defendant, after asking the witness if it was a record of Letterman, read into evidence a final summary made by Captain Hood, the doctor to whom Colonel Clausen had referred defendant for treatment. Defendant asked Colonel Clausen if he had seen the records subpoenaed by defendant and if they were all of the Letterman records in defendant's case. The witness stated they did not include the outpatient clinic records. Defendant
Defendant over plaintiff's objection read into evidence a report and diagnosis by Dr. Feeney, after first asking Colonel Clausen if it was an official record of Letterman, also a report dated February 28, 1952, to which plaintiff objected on the ground that it was only in for identification. Defendant then asked if it was "a portion of the medical record from Letterman Hospital under your supervision?" The witness stated it was. Plaintiff further objected on the ground that it was identically the same type of record as the Captain Prest report (later Exhibit 8) to which defendant had previously objected, making the same objections defendant had made. Considerable discussion followed and the court said, "I will allow this [referring to the record defendant wanted in], but if I do, then I am going to allow the other one, too ..." (referring to the Captain Prest report, later Exhibit 8). Defendant insisted upon the report going in. The court admitted it and defendant read it into evidence. Defendant also read into evidence the record of several electro-encephalograms and the diagnoses therefrom, after asking Colonel Clausen if they were official Letterman records. Defendant asked Colonel Clausen if the medical records in court were the official records of Letterman and he replied that they were. On redirect examination of Colonel Clausen plaintiff asked him if the documents, plaintiff's Exhibits 8 and 9, were official records of Letterman. These two records were not in those included in defendant's Exhibit B for identification. They were separately identified. He stated they were. Defendant objected to their introduction on the ground that they contained hearsay, conclusions and improper statements. The court admitted them. An examination of the transcript shows that throughout the trial both side and the court assumed that
Exhibit 8 is certified as a true copy by one Gess, Captain, Medical Service Corps, Commanding. It is a report dated December 10, 1951, signed by Captain Prest, Medical Corps. It states: "This 29 year old officer was seen at the request of the Commanding Officer, Medical Holding Detachment, for evaluation prior to proposed action under AR605-200 for alleged failure to properly meet personal financial obligations. According to the information the individual offered both myself and the social worker, his debts would appear to be concerned with the purchase of an automobile, household furnishings, and indebtedness necessitated by change of situation which did not authorize movement of family and household effects. According to the patient's statements these outstanding debts are now being met according to prior agreement and his present administrative difficulties stem from his being on leave during which time payment fell due and his inability to meet this payment until his return from leave. This individual has no psychiatric complaints. He is at present hospitalized on the Neurological Service with the diagnosis of migraine headaches, improved, and it is felt that he is ready for return to duty. He is a youthful appearing individual who is friendly and outgoing in his manner relating well in the interviews situation. Affect is appropriate to content. Speech is logical, relevant, and coherent. There is no abnormal content elicited nor are there any evidences of gross disturbance of mentation. Past history taken from the patient's statements indicate no clear evidences of psychological disturbance, either in his family history, work record, or in the area of his marriage and other inter-personal relationships.
Exhibit 9 is a copy certified by Tiffany, a Major, Medical Corps, Assistant Chief, Neurology Section, of a report by Arthur J. Levens, Lieutenant Colonel, Medical Corps, with whom Colonel Clausen had made an appointment for defendant. Colonel Clausen identified it is an official hospital record. It reads: "7 Oct. 52: This 30 year old white male comes to Neurology Clinic without any specific consultation request, but it is understood that the patient had some type of episode in which he had a car accident. He was seen in Out-Patient Clinic where the possibility of pneumoencephalography was considered. At that time it was understood that the physician considering this procedure was not aware that a pneumoencephalogram had been done in the past. This patient, it is understood, is still being investigated in connection with an assault upon a taxi cab driver. Neurological examination reveals no significant neurological abnormality. The patient is found to be somewhat tense and sufficient abdominal relaxation is unobtainable so that the abdominal reflexes could not be elicited. Impression: Patient makes some vague reference to headaches which start in the posterior cervical area, and in view of the general picture of tension believe that the patient has a mild tension state which could be well founded on his present predicament. He has been told by a civilian neurologist that he might have a fugue state of which I am personally very skeptical. I believe that the patient may be endeavoring to manipulate his way into the hospital in order to strengthen his defense. I think this patient should be kept out of the hospital. Pneumoencephalography at this point, in view of negative neurological findings and previous pneumonencephalogram, should not be done."
Formerly, the rule concerning business records was very strict. However, it was found that under modern business methods such rule had become archaic. In 1927 a committee sponsored by the Commonwealth Fund of New York published a model act for "Proof of Business Transactions." (5 Wigmore, Evidence, 3d ed. § 1520, p. 361.) This act was designed to permit the admission in evidence of any record or memorandum of any act, event, transaction or occurrence, provided only that the record was made at or near the time of the event, and that the making of such a record was in the regular course of business. This act was adopted by New York and six other states as well as in the United States Code. Then, in 1933, the Committee on Evidence Acts of the National Conference of Commissioners on Uniform State Laws drew up a Uniform Act on Business Records which after revision was adopted in 1936 by the Conference. This act has been adopted in 13 states including California and in Hawaii in preference to the first mentioned act. The principal difference between the two acts is that the later act expressly gives discretion to the courts to determine whether admission of the record is justified by the circumstances under which it is made. It is based on the recognition that records made and relied upon in the regular course of business may be regarded as trustworthy without verification by all the persons who contribute to them. (See 48 Columb.L.Rev. 922.) While in other states the act in its relation to hospital records has been variously applied, in California cases it has uniformly been given a liberal interpretation. In Loper v. Morrison, 23 Cal.2d 600 [145 P.2d 1], the trial court had excluded from the evidence a portion of a hospital chart called a "nurses' record" which contained entries by nurses relative to the plaintiff's condition while in the hospital. It was offered to refute the plaintiff's evidence that the plaintiff while there suffered from headaches, bruises and sore spots, was nervous and hysterical and was given pills to help her sleep. Concerning the Uniform Business Records as Evidence Act the court said (p. 608): "The purpose of this act is to enlarge the operation of the business records exception to the hearsay evidence rule.... The business entry statutes are not limited to entries in commercial enterprises, and hospital records are properly included within their operation. [Citations.] There is no reason to believe that
In Gunter v. Claggett, 65 Cal.App.2d 636 [151 P.2d 271], an official naval form signed by the officer in charge of the San Francisco Navy Recruiting Station stating that the plaintiff had been discharged from the United States Naval Reserve and was not recommended for reenlistment by reason of certain "disqualifying defects" (p. 643) consisting of enumerated physical infirmities, was admitted over the objection that it was hearsay. In holding there was no merit to this objection the court said the certificate was admissible under the act.
In McDowd v. Pig'n Whistle Corp., 26 Cal.2d 696 [160 P.2d 797], it was contended that the hospital record covering the plaintiff's stay was improper for use in showing the diagnosis of the plaintiff's condition and the nature and extent of her injuries. After holding that a proper foundation had been laid the court said its admission was proper as "It was made in the regular course of business of the hospital and contained matters customarily contained in such records." (P. 700.) Concerning the Loper case, supra, 23 Cal.2d 600, the court said (p. 701): "In the instant case a proper foundation was laid and the Loper case clearly held the records admissible in such event. The Loper case has since been followed. (Gunter v. Claggett, 65 Cal.App.2d 636 [151 P.2d 271].) (See, also, Ulm v. Moore-McCormack Lines, 115 F.2d 492, rhg. denied 117 F.2d 222; Reed v. Order of United Commercial Travelers, 123 F.2d 252; and Gile v. Hudnutt, 279 Mich. 358 [272 N.W. 706].)"
In Pruett v. Burr, 118 Cal.App.2d 188 [257 P.2d 690], the court was not considering hospital records. There the defendants were charged with spraying the plaintiff's cotton with a spray containing certain deleterious chemicals. Letters
In McGowan v. City of Los Angeles, 100 Cal.App.2d 386 [223 P.2d 862, 21 A.L.R.2d 1206], in upholding the rejection of a "blood alcohol determination" on the ground that there was no showing that the blood tested was that of the person in question, the court pointed out that under section 1953f, Code of Civil Procedure, "Patently the court had discretion to determine whether the paper was relevant and whether `the sources of information, method and time of preparation were such as to justify' the admission of the coroner's record."
In Nichols v. McCoy, 38 Cal.2d 447 [240 P.2d 569], the court upheld the introduction into evidence of the coroner's record of a test made of the decedent for alcohol. It distinguished the McGowan case, supra, on the ground that there (p. 449) "it was the opinion of the trial court that the sources of information, method and time of preparation of the record in question were not such as to justify its admission." In the Nichols case the court held that even the identity of the source of the blood could be proved by the record, and that the result of the tests could be proved by the record even though the person making the tests did not appear. Two of the Supreme Court justices dissented.
Professor Hale in 14 Southern California Law Review 99, discusses the admissibility of hospital records under the act. He points out that while throughout the country there is a definite cleavage of judicial opinion on the question of the admissibility of hospital records, some jurisdictions holding them to be inadmissible because hearsay, while others hold them admissible as exceptions to the hearsay rule, the general tendency is towards liberality in holding them admissible. In
"The medical records of patients at a hospital, organized on the usual modern plan, deserve to be placed under the present principle [exception to the hearsay rule]. They should be admissible, either on identification of the original by the keeper, or on offer of a certified or sworn copy. There is a Necessity (ante, § 1421); the calling of all of the individual attendant physicians and nurses who have cooperated to make the record even of a single patient would be a serious interference with convenience of hospital management. There is a Circumstantial Guarantee of Trustworthiness (ante, § 1422); for the records are made and relied upon in affairs of life and death. Moreover, amidst the day-to-day details of
In People v. King, 104 Cal.App.2d 298 [231 P.2d 156], the court stated (p. 309): "It clearly appears from the record that all of the records were made in the regular course of the business of the hospital and that they were made at or near the times of the various acts recorded. While it may be that there frequently are some things recorded on a hospital chart that in a strict sense may not be admissible, such items can be excluded therefrom upon the making of a proper objection, or appropriate instructions may be offered covering such items. Here the only objection was that the records were secondary evidence, which was not a good objection in view of the `Uniform Business Records as Evidence Act.'"
Volume 48, Columbia Law Review, 920, 929, states: "The vast majority of courts readily admit not only routine observations by medical personnel in a hospital record but also diagnoses of a patient's physical or mental condition."
This brings us to the records in question. As to foundation, while there was no detailed testimony as to the mode of preparation (which in Luthringer v. Moore, 31 Cal.2d 489 [190 P.2d 1], caused rejection of hospital records), the assumption by all concerned that they were properly prepared, the use of them by the defendant, the testimony of the Army doctors concerning them, and all of the circumstances connected with them, supported the court's determination that their sources of information, method and time of preparation were such as to justify their admission.
"2. Complaint. The patient's statement of reasons, signs and symptoms for seeking medical aid....
"4. Past history. A summary of the patient's life in relation to pathology, illness, with or without complications, operations and injuries, habits, social condition, environment, and any data which may be related to the present illness." (Emphasis added.)
This report gives as the reason defendant was in the hospital, "alleged failure to properly meet personal financial obligations." This fact plus the information which he himself gave concerning his debts are all data required by the above rules 2 and 4. Moreover, they bear on the diagnosis given that although defendant had an immature attitude towards his financial affairs, it did not constitute psychological illness. Moreover, Colonel Clausen, when read this very clause, testified that defendant's financial situation which the doctor obtained both from the record and from the defendant himself, was one of the things considered by him in arriving at his opinion of defendant's mental condition. Defendant contended he was in the hospital because of his mental condition due to battle fatigue and other causes associated with his Army service. This opened the door to expert opinion as to whether he was psychologically ill or only worried about his debts. Had Captain Prest, the doctor who made the diagnosis
2. Defendant's Financial Condition
As we have heretofore shown, defendant's financial condition as testified to by Colonel Clausen and as shown by the hospital records was admissible as part of the basis for the medical diagnosis. Colonel Clausen testified that in arriving at his opinion he considered that defendant was having financial difficulties, and that he had cosigned a note for defendant. Defendant did not ask that the fact of cosigning the note be stricken from the record; he merely objected to Colonel Clausen's conclusion as to defendant's financial difficulties. Defendant now assigns error as to the statement about the note. As defendant did not object, he cannot raise the point now. As to the objection he did make the record shows that Colonel Clausen was stating what he had been told by defendant, and hence would have been an admission.
Dr. Brown, the Clinical Director of Psychiatry at the San Francisco City and County Hospital, testified that he examined defendant in January, 1952 (defendant was sent there for examination as to his sanity by a judge of the municipal court), and that when he asked defendant why he shot the driver defendant replied: "I don't know. I can see some reason for holding him up. I was in financial difficulties." In his statement to the police the day after the shooting, when asked why when he left his room to get coffee he came back and got his gun, he replied: "A. I don't know. The same reason why I couldn't stay in the ward in the first place. Worried and couldn't sleep. Worried about money matters. Q. What was your motive in getting the gun from the culvert? A. To go out and get money. Q. By robbery? A. If necessary, yes." (Emphasis added.) On the stand defendant stated that he doubted that he asked the driver for money. "I didn't want it, I had no use for it." (Emphasis added.) He was then asked if he was not in financial difficulties at the time. He replied "Yes, and no," and then admitted that he was $1,500 in debt. Defendant then claimed that the next day he was to receive his pay of $500 and that accordingly he would not have any use for such a small sum of money as he would be likely to get from a cab driver. His defense additionally was that he did not have the requisite intent to commit robbery and that the driver had handed over the money voluntarily under the mistaken belief that defendant was attempting to rob him. In view of the foregoing, defendant's financial condition and the fact that he had actually stolen his roommate's wallet were relevant as bearing on his story that the driver voluntarily gave him the money and that defendant had no intent to deprive the driver of it.
There are, however, exceptions to that rule. For example, it may be shown that prior to the date of the alleged crime the defendant was without money and immediately thereafter he had a large amount of money. (People v. Kelly, supra, 132 Cal. 430; People v. Orloff, 65 Cal.App.2d 614 [151 P.2d 288].) Another exception appears in People v. Richards, 74 Cal.App.2d 279 [168 P.2d 435], where evidence was held admissible to show that prior to the robbery the defendant had made a down payment on an automobile and was required to make subsequent payments on it, that he was not working and had no finances with which to meet the obligation. "... it was for the jury to determine whether his pecuniary situation tended to directly connect him with the commission of the crime or to disclose a motive for its commission." (P. 290.) The court stated further (p. 289): "As stated by the trial court, `if it has a tendency to prove that on the 28th day of February (the date of the robbery) the defendant is in need of money, and it is a circumstance which may or may not have any weight or may or may not have any particular significance. But I think it is admissible as a circumstance.'"
3. Answer of Witness Quigg.
4. Cross-examination of Character Witnesses.
5. Alleged Misconduct.
As to the first assignment, the district attorney was answering defendant's argument in which he reviewed the medical testimony and asked the jury to acquit defendant so that he could get medical care. The district attorney was trying to say that insanity was no defense to the action at this time. While the matters contained in the second assignment would have been better left unsaid, we can find no prejudice in view of the court's plain, repeated and forcible instructions to the
6. Instruction on Misfortune.
It should be pointed out that defendant's story on the stand of what happened at the time of the robbery was directly contrary to that of the driver and to defendant's own stories given to the Army and police officers. So far as the assault is concerned, under his own statement that he threatened to put the cab driver asleep by hitting him with the gun, the assault was complete before the gun went off. Defendant does not claim to have blacked out at any time until after that. The jury by its verdict gave him the benefit of his claim that he did not intend to pull the trigger. His claim of irresistible impulse and no intent to rob are not consistent with the driver's story that he demanded money and actually did rob him, and with defendant's admission that he needed money and intended to get it by robbing the driver if necessary.
7. Denial of New Trial.
The judgment and order denying new trial are affirmed.
Peters, P.J., and Wood (Fred B.), J., concurred.
Appellant's petition for a hearing by the Supreme Court was denied January 27, 1954. Edmonds, J., did not participate therein.