Evidence to Show That a Gun Was Loaded During a Robbery In California
In People v. Hall (1927) 87 Cal.App. 634, 262 P. 50, the defendant was convicted of first degree robbery, which at that time was "'all robbery which is perpetrated by torture or by a person being armed with a dangerous or deadly weapon . . . .'" ( Id. at p. 634, quoting former Pen. Code, 211a.)
The defendant in Hall contended on appeal that the evidence did not show the gun he used in the robbery was loaded.
The Court disagreed, offering the following analysis:
"The men who were robbed testified that the defendant drew a gun on them, ordered them to hold up their hands and lined them up with their faces to the wall and then took their money from their persons. These men did not know whether the gun was loaded. It was stipulated that the sheriff of Tuolumne County, if called as a witness, would testify that 'he took a 38 caliber magazine from a 38 automatic revolver from Blackie Kennedy . . . on the night of the 19th of April, 1927,' and kept the magazine, but left the revolver in Kennedy's possession. the robbery charged in this case was committed April 26, 1927.
The defendant testified that the revolver used in the robbery was given to him by Kennedy a few days before the robbery, that it did not have a magazine at that time, that Kennedy said 'that I could find one for it,' and that it had no magazine at the time of the robbery. It also appears that the defendant had possession of the revolver when he was arrested, about six weeks or two months after the robbery, and that it had no magazine at that time.
It is not difficult to procure a magazine for such a weapon and the defendant may have procured one after the revolver was given to him, if it was so given to him. the only evidence in support of the defendant's contention that the revolver was not loaded is his own testimony to that effect. Few criminals would ever be convicted if their explanations were always accepted as gospel truth.
They do not usually arm themselves with unloaded guns when they go out to commit robberies, and in this case the court was not bound to accept the defendant's statement that the gun was unloaded when the circumstances indicated the contrary. the defendant's acts and the language used by him in the commission of the robbery constituted an admission by conduct, an implied assertion that the gun was loaded." ( People v. Hall, supra, 87 Cal.App. at pp. 635-636.)