People v. Bingham ( 1941 )

WOOD, J., Concurring.

I concur in the judgment. In my opinion the testimony of a witness that the “gun” used in the robbery for which appellant was on trial “appears to be similar to the gun” which appellant held in his hand at a robbery committed on the following day does not afford sufficient justification for the introduction of proof of the circumstances of the second robbery. It is a matter of common knowledge that there are innumerable weapons which “appear to be similar” to the one used in the robbery. The reception of the evidence may be justified, however, on a different ground. In attempting to establish an alibi appellant presented his wife as a witness and she testified that she left appellant in bed at 6:30 A. M. on August 12. The second robbery, in which appellant participated, was committed at about 7:50 A. M. of the same day at a “considerable distance ’ ’ from the locality where appellant lived. The evidence was admissible to refute the alibi evidence of appellant. That it was admitted for this purpose is evident from the remarks of the trial judge: “It is to meet the testimony given by the defense witnesses as to the whereabouts of the defendant Hancock on the morning of the 12th—that having been brought out in the examination of at least one of those witnesses”.