Edwards

Defendant appeals from judgment (after jury verdict) of conviction of first degree robbery (violation of Pen. Code, § 211) and purports to appeal from the order denying new trial.

Question Presented

Should the trial court on its own motion have instructed on (a) identification, (b) alibi?

Record

Shortly past midnight on February 9, 1962, Mrs. Kathryn Banchero, a clerk in a liquor store in Emeryville, was alone in the store. Defendant entered and asked for a quart of ale. Mrs. Banchero reached into the refrigerator for the ale and as she turned around, defendant with his hand in his pocket stated “This is a stick up.” Shortly thereafter he produced from his pocket an 8-ineh boning knife which he held touching her clothing, and said "Open the register before I cut you up.” Mrs. Banchero opened the cash register and put approximately $65 into a paper bag, which she gave defendant. Defendant told her to hurry up or else he would cut her up. When she said that she had no more money, he asked for a fifth of Scotch. As she went for the Scotch, which was near the door, defendant went behind the counter. Grabbing a bottle of Scotch Mrs. Banchero ran out the door and yelled “I’m being…