Neese

Defendant was acquitted by a jury of robbery (count I) and kidnaping (count II) and convicted of a violation of section 12021, Penal Code (count III). The court found one of three alleged prior felony convictions to be true. Defendant appeals from the judgment.

Around 8 :05 p.m. on February 26, 1968, Paul Krumhauer, who operates a restaurant in Pomona, was robbed of $80 by a man he four times identified as defendant who displayed a gun he identified as Exhibit 2 (.38 caliber revolver), and taken by defendant to a storeroom where he was ordered to remain. However, the jury, apparently accepting as true the testimony of defendant’s alibi witnesses, acquitted him of both robbery and kidnaping.

*237 In count III defendant was charged with and convicted of a violation of section 12021, Penal Code, in that on or about February 26, 1968, he had in his possession and under his custody and control a .38 caliber revolver capable of being concealed upon the person, he having been convicted of robbery, a felony, in 1963. Appellant urges a reversal on the ground that the trial court erred in allowing prior inconsistent statements of the People’s witnesses to be admitted as substantive…

—I dissent. In my view, People v. Johnson, 68 Cal.2d 646 [ 68 Cal.Rptr. 599 , 441 P.2d 111 ] and People v. Green, 70 Cal.2d 654 [ 75 Cal.Rptr. 782 , 451 P.2d 422 ] require that the judgment of conviction be reversed. Comity to a decision of the Court of Appeal of the Third District in People v. Pierce, 269 Cal.App.2d 193 [ 75 Cal.Rptr. 257 ] indicates a similar result.

Facts

Appellant was charged in a three-count information with robbery (count I), kidnaping for the purpose of robbery (count II), and possession of a eoneealable firearm, he having previously been convicted of a felony (count III).

All three counts of the information charge offenses occurring on or about February 26, 1968. On that day, Mr. Paul Krumhauer was present at the spaghetti restaurant owned and operated by him. At about 8 p.m., a man whom Krumhauer thought to be a customer came in. As Krumhauer approached, the man displayed a black, snub-nosed revolver and demanded the money .in the cash register. Krumhauer opened the register and the robber took the bills from it. The robber forced Krumhauer at gunpoint to walk to the kitchen of the restaurant where he took the victim’s wallet. Krumhauer identified…

Defendant was acquitted by a jury of robbery (count I) and kidnaping (count II) and convicted of a violation of section 12021, Penal Code (count III). The court found one of three alleged prior felony convictions to be true. Defendant appeals from the judgment.

Around 8:05 p.m. on February 26, 1968, Paul Krumhauer, who operates a restaurant in Pomona was robbed of $80 by a man he four times identified as defendant who displayed a gun he identified as Exhibit 2 (.38 caliber revolver), and taken by defendant to a storeroom where he was ordered to remain. However, the jury, apparently accepting as true the testimony of defendant's alibi witnesses, acquitted him of both robbery and kidnaping.

In count III defendant was charged with and convicted of a violation of section 12021, Penal Code, in that on or about February 26, 1968, he had in his possession and under his custody and control a .38 caliber revolver capable of being concealed upon the person, he having been convicted of robbery, a felony, in 1963. Appellant urges a reversal on the ground that the trial court erred in allowing prior inconsistent statements of the People's witnesses to be admitted as substantive…