14 Cal.2d 1, 4230, People v. Braun

Docket Nº:4230
Citation:14 Cal.2d 1, 92 P.2d 402
Opinion Judge:[9] Edmonds
Party Name:People v. Braun
Attorney:[7] Morris Lavine for Appellant. [8] Earl Warren, Attorney-General, U. S. Webb, Attorney-General, and Burdette J. Daniels, Deputy Attorney-General, for Respondent.
Case Date:July 08, 1939
Court:Supreme Court of California
 
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Page 1

14 Cal.2d 1

92 P.2d 402

THE PEOPLE, Respondent,

v.

GEORGE BRAUN, Appellant.

Crim. No. 4230.

Supreme Court of California

July 8, 1939

In Bank.

Page 2

COUNSEL

Morris Lavine for Appellant. Earl Warren, Attorney-General, U.S. Webb, Attorney-General, and Burdette J. Daniels, Deputy Attorney-General, for Respondent.

Page 3

OPINION

[92 P.2d 403] EDMONDS, J.

The defendant was charged by the district attorney with the crime of robbery, and, also, with the prior conviction of a felony, which he admitted. Harry Groves and John Robles were named in the information as codefendants, but the charge against them was dismissed before trial. The case then proceeded with Braun as the sole defendant. Found guilty by a jury, he has appealed from the judgment rendered upon its verdicts, contending that the testimony concerning his participation in the crime is so inherently improbable as to amount to no substantial evidence; also, that the district attorney was guilty of prejudicial misconduct.

At about 4:30 on a January morning, three men, armed with deadly weapons, entered the office of the United Independent Dairies in the city of Los Angeles and held up the three employees then on duty, obtaining a small amount of money and some personal property. Kenneth Weston, one of the victims of the crime, testified that he was sitting in the office of the dairy company dozing, with his head down on the desk before him, when a man, later identified as Harry Groves, hit him on the head saying, "This is a stick-up". Groves, who carried a pistol, told him to lie down on the floor and then jerked out the cords connecting the telephone and desk lamp. At this point another man came in the door, carrying a rifle. Weston was not then prone on [92 P.2d 404] the floor but on his hands and knees facing the door. He observed that this second man, whom he identified as the defendant, had on a tweed overcoat, a dark hat and a grayish muffler, the muffler covering the lower part of his face, leaving the portion from his upper lip to his eyebrows exposed. Gray hair above his temples could also be seen.

This witness also testified that the defendant came over and stood about three feet from him while Groves and the third robber, later identified as John Robles, went into the back room and brought the two other employees into the office, where they were forced to lie on the floor. The three gunmen were there for about 15 minutes, during which time they robbed the three employees and made Weston get up several times to try to open the company safe. Weston testified that on these occasions he had a better opportunity to look at the defendant, but that Braun did not say anything which he heard.

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Weston's first identification of the defendant was made some time after the crime when, at the police station, he picked out his picture from among those of 30 or 40 persons who were then under suspicion. At the trial he was very positive that Braun was the man with the rifle. When asked whether on the night of the holdup he noticed anything in particular about the defendant which made him positive of his identity he replied: "Yes...

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