Baker

On or about January 15, 1927, one Mike Trifoni, a shoemaker, was attacked in his shop in the city of Los Angeles by a robber, and during a struggle which ensued between them the latter was shot and killed. Baker was prosecuted for the crime, which resulted in a verdict of murder in the first degree, recommending life imprisonment. He moved for a new trial, which was denied, and appeals from the judgment and order denying a new trial.

Appellant seeks a reversal upon the ground that the evidence was wholly circumstantial, and that it was insufficient, particularly as to identification, to support the verdict and judgment.

Trifoni testified that at about 11 o ’clock P. M. of said date a man entered his place of business, produced a .45 caliber pistol, and ordered him to throw up his hands and give him his money; that the witness then caught the man’s hands, and was wrestling with him when the latter’s revolver was discharged several times; that “then the other fellow was outside and was shooting” from near the sidewalk ; that the robber suddenly relaxed, fell to the floor, and a man who resembled the defendant entered with a pistol in his hand, ordered Trifoni to stand by the wall,…