Thomas

By separate informations Cecil Thomas and Trilbey Dan Hopkins were accused of the crime of robbery. The cases were consolidated for trial because they related to the same occurrence. Both defendants were found to be guilty of robbery in the second degree in a trial by jury. Thomas has appealed from the judgment and from the order denying his motion for a new trial.

Because of the nature of the appellant’s claim of error hereinafter discussed, it is necessary to set forth at some length the testimony given at the trial. The offense occurred at a café on South Main street in Los Angeles. Ralph Paytiamo, who was in the Navy, entered the café at about 9:30 p.m. on the evening of February 4, 1961. He sat in a booth for a period of time and then went into the restroom. After he was in that room about a minute, he heard the word “hey” and turned around. Someone hit him on his left eye. He went against the wall and fell to the floor. He was hit again and became unconscious. Thereafter he got to his feet. No one else was then present. His wallet containing $20 was missing. He could not identify the person who hit him. Later, when he went to the bus depot, police officers took him to the…