People v. Ferlito

Opinion — York

YORK, J.

This case was tried by the court without a jury, after a waiver of a jury trial by the defendant, his *356 counsel and the district attorney, regularly entered in the record.

The whole appeal appears to be predicated upon the belief that the appellate' court can pass upon conflicting evidence. The objection is made that the trial court “could have given no credit whatever to the witnesses for defendant, otherwise an alibi was fully established.” The defendant was identified as the robber. The testimony of only one witness would be sufficient to enable the court to make its finding of guilt.

There was proof of the corpus delicti in that a party, identified as the defendant, entered the bank and with a drawn revolver made threats as to what he would do if anyone interfered with him, and was heard handling money in the cage, and thereafter, there was evidence that there was a shortage of the funds in the cage. It makes no difference what the amount of the shortage was; the theft of any amount would be sufficient to make the crime robbery.

The doctrine of the credibility of the testimony of witnesses has no application to this case, as there was a direct conflict between the testimony of defendant’s witnesses that the defendant was at King City at the time of the robbery, and the testimony of the witness who testified that appellant was present in the bank aüd committed the robbery in Alhambra, at the same time fixed by defendant’s witnesses as the time he was in King City.

There being no other questions raised upon appeal, the judgment of conviction and order denying motion for new trial are affirmed.

Conrey, P. J"., and Houser, J., concurred.