437 F2d 114 United States v. Comes Last

437 F.2d 114

UNITED STATES of America, Plaintiff-Appellee,
Percy Daniel COMES LAST, Defendant-Appellant.

No. 25915.

United States Court of Appeals, Ninth Circuit.

December 21, 1970.

L. Neil Axtell (argued), Glasgow, Mont., for defendant-appellant.

Keith L. Burrows (argued), Asst. U. S. Atty., Otis L. Packwood, Billings, Mont., for plaintiff-appellee.

Before DUNIWAY, HUFSTEDLER and KILKENNY, Circuit Judges.


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Percy Daniel Comes Last was found guilty by a jury of robbery in violation of 18 U.S.C. §§ 1153 and 2111. He argues that his motion for judgment of acquittal should have been granted. We affirm.


The government's case was based solely on the testimony of the victim, Squires. Comes Last presented no witnesses on his behalf. It is argued that Squires' testimony is insufficient to establish a taking by Comes Last of Squires' boots and the forty dollars that he had stashed there. Squires testified that he was assaulted by Comes Last and one Dale King, both of whom he knew. Squires was hit on the jaw, knocked down and kicked. He was lying face down in the snow when his boots were removed. He did not see who removed the boots. On cross-examination the following colloquy took place:


"Q. Do you know who was taking off your boots then, if your face was down?


A. No, I don't.


Q. In fact, it could have been Dale rather than Percy, could it not? You couldn't see them could you?


A. He has four hands I guess. They started taking both my boots off at the same time.


Q. You were aware both of your boots were coming at the same time?

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A. Yes."


Viewed in the light most favorable to the government, the evidence is sufficient to support the jury's implied finding that Comes Last directly participated in the taking of the boots and the money.