74 Wn.2d 784, THE STATE OF WASHINGTON, Respondent, v. ROBERT SMILEY, Defendant, EDDIE B. ROSE, JR., Appellant
[No. 39991. Department Two. Supreme Court October 31, 1968.]
THE STATE OF WASHINGTON, Respondent, v. ROBERT
SMILEY, Defendant, EDDIE B. ROSE, JR., Appellant.*
[1] Criminal Law - Trial - Province of Jury - Identification of Accused. One function of a jury in a criminal prosecution is to resolve any conflict as to whether a defendant is sufficiently identified as a participant in the crime charged.
Appeal from a judgment of the Superior Court for King County, No. 46473, F.
A. Walterskirchen, J., entered October 26, 1967. Affirmed.
Prosecution for robbery and assault. One of the defendants appeals from a conviction and sentence.
Wesley G. Hohlbein, for appellant (appointed counsel for appeal).
Charles O. Carroll and C. N. Marshall, for respondent.
HILL, J. -
Eddie B. Rose, Jr., and Robert Smiley were charged with robbing the London Shop of certain wearing apparel and with assaults on John Stewart, the owner of the shop, and Robert Stewart, who was assisting him at the time of the robbery.
Three colored males were in the London Shop at the time of the robbery and the assaults on John and Robert Stewart. Robert Smiley did not leave the shop following the robbery and the assaults, and his defense was that he was just a customer who happened to be in the London Shop at the time.
* Reported in 446 P.2d 319.
[1] See 5 Am. Jur. 2d, Appeal and Error 838.
Oct. 1968] STATE v. SMILEY 785
John and Robert Stewart each selected pictures of Rose and Smiley, from among a number shown to them by the police, as being two of the three men who had robbed and assaulted them. They also picked out Rose and Smiley from police lineups on two different occasions. There was also a positive in-court identification of Rose and Smiley by each of the Stewarts.
The police secured a search warrant for a house frequented by Smiley, and there found a number of items of wearing apparel taken from the London Shop at the time of the robbery. Rose was later arrested at this house. They were each found guilty of the robbery and of the two assaults.
Smiley has not appealed, but Rose wages this appeal from the judgment of conviction entered upon the verdict. The sole contention made by his court-appointed counsel on this appeal is that the proof of identity was not sufficient to sustain the conviction.1
[1] The record shows definite identification of both Rose and Smiley as participants in the assaults and robbery. The vigorous efforts by the defense to discredit the identifications and to raise a doubt in the minds of the jurors were not successful. Whether Rose was one of the robbers and assailants was a jury question. State v. Frye, 53 Wn.2d 632, 335 P.2d 594 (1959). There was ample evidence to sustain the verdict. The judgment of conviction appealed from is affirmed.
FINLEY, C. J., HUNTER and HAMILTON, JJ., and RYAN, J. Pro Tem., concur.
1 Some seven additional assignments of error were made in a handwritten brief filed by the appellant pro se. His brief contains nothing except the assignments of error. Ordinarily such a brief would not be considered. However, in reviewing the record, we have examined the claims of error made by the appellant pro se. Four relate to questions asked by the deputy prosecuting attorney; two urge that the testimony of John Stewart be stricken; one urges that the testimony of Robert Stewart be stricken.
All of these assignments of error are completely devoid of merit and do not warrant discussion.