People v. Black

• Decision Date: 13 May 1963
• Docket Number: Cr. 490
• Citation: 30 Cal.Rptr. 798,216 Cal.App.2d 103
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard W. BLACK and Robert Russo Ebell, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 798

30 Cal.Rptr. 798

216 Cal.App.2d 103

The PEOPLE, Plaintiff and Respondent, v. Richard W. BLACK and Robert Russo Ebell, Defendants and Appellants.

Cr. 490.

District Court of Appeal, Fifth District, California.

May 13, 1963.

Hearing Denied July 10, 1963.

Floyd S. Hill, Harold D. Sandell, Fresno, for appellants.

Stanley Mosk, Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., and Edsel W. Haws, Deputy Atty. Gen., Sacramento, for respondent.

RALPH M. BROWN, Justice.

An information was filed charging the defendants with the violation of section 211a of the Penal Code by the armed robbery of Mrs. Sally Temple, a similar violation of armed robbery involving Mr. Temple, a count charging the kidnaping of Mrs. Temple a similar violation as to Mr. Temple, a count charging violation of Penal Code, section 459 for burglary and entering the dwelling house of Mr. and Mrs. Temple, and the last count charging the burglary of the J. C. Penney Company store in Fresno.

Appellant Black was charged with six prior convictions and appellant Ebell, with four prior convictions, all of which were admitted by appellants.

After a jury trial, appellants were found guilty of all six counts, and it was found that appellants were armed, fixing the degree of robbery in the first degree and burglary in the first degree.

On November 21, 1961, Mrs. Temple arrived at her home at 5:30 p. m. and upon entering her kitchen was met by a man (Intruder No. 1) wearing a mask having a large nose and teeth, attired in a two-piece coverall suit and pointed toe, loafer-type shoes. Mrs. Temple fainted and upon reviving was dragged by the intruder from the kitchen into the living room, was asked when her husband was coming home and was required to sit on the couch where she stated she usually sat when her husband arrived at evening time. The intruder advised her that he wanted money; after walking around the house she was taken into the bedroom where the sheets had previously been torn into strips, her hands were tied with wire, and a strip of sheet was tied over her mouth, and she was ordered to lie upon the bed.

Her husband, Mr. Temple, manager of the Fresno J. C. Penney Company store, arrived home at 6:10 p. m. and was met in the kitchen by the intruder who, at gun-point, ordered Mr. Temple into the bedroom where he was searched, money was removed from his wallet by the intruder, as well as the keys to the J. C. Penney Company store and the code to the combination of the store safe which was in Mr. Temple's wallet, the intruder stating, 'If it doesn't work we are going to kill you and your wife.' The intruder then ordered Mr. Temple to untie his wife and they were taken to the patio room, the television set was turned on by Mr. Temple on orders of the intruder, and Mr. Temple was questioned as to what time the janitors came to work at the store, when they ate and the time of the shift change, to which Mr. Temple stated that the store hired a janitorial service so that he wouldn't know the details about the janitors, and the intruder said, 'Now, if I find you aren't telling the truth, I will kill you and we will kill your wife.'

The telephone rang four times and stopped; Mr. Temple was ordered not to answer it, but again it rang and he was instructed to answer the call, which caller asked, 'Are you hiring any men at Penneys?' Mr. Temple advised the caller to come in the following day and file an application; the intruder then took the phone and stated to the caller, 'We are in the house and things are going according to plan.' The intruder then made a phone call, using a foreign accent, stating that everything was going according to plan. About fifteen minutes later Intruder No. 2 arrived wearing a mask and hood, being a person somewhat shorter than Intruder No. 1, and wearing a tan carcoat.

After ransacking the house, the intruders took between $40 and $60 from Mrs. Temple's coin purse which was in the bedroom, as well as the money from Mr. Temple's wallet.

At approximately 9:30 p. m. after obtaining a straw hat and a felt hat with a J. C. Penney Company label from the residence, the intruders left the house with the Temples as hostages. Mrs. Temple's hands were re-tied with wire; she was blindfolded with a hood, and the first intruder placed her in the front seat of a car; the second intruder, with Mr. Temple, got into another car. It was understood between the intruders that if a shot came from inside the store or any confusion resulted, the first intruder was to kill Mrs. Temple and make his getaway.

Mr. Temple drove the car to the store, with the second intruder sitting in the back seat with a gun. They arrived at the store at about 10 p. m. and the second intruder removed his mask and walked with Mr. Temple from the car to the store, Mr. Temple having been ordered to carry one of the two briefcases which were taken from the home. Mr. Temple opened the store door while the intruder was replacing his mask, at which time Mr. Temple got a view of the side of his head, and in his testimony Mr. Temple testified he believed that this person was appellant Black, basing his identification on Black's stature and size and 'the side of his face with the neat cut little sideburn.' He also testified, 'It was Mr. Black, sitting on the end of the table over there. Neat little sideburns and high cheekbones.' Deputy District Attorney Smith asked Mr. Temple on redirect examination, '* * * can you swear that it is he?' to which Mr. Temple replied, 'No. * * * But it is awful close.'

Mr. Temple and Intruder No. 2 proceeded to the fourth floor of the building where two janitors were met and searched by the intruder; they all proceeded to the money room where the safe was located; the janitors' hands and feet were tied, and Mr. Temple complied with the order to open the safe and then his hands and feet were tied. The intruder then proceeded to fill one of the briefcases with money from the safe; he left the store for five minutes and when he returned removed additional moneys from the safe, placing the coins in a pillow case or flour sack; a stockroom truck was used to transport the heavy load to the stairway. The total amount taken, including checks, was $46,497.37, and the net loss was $41,793.37, excluding the checks returned by the police and bad checks.

Meanwhile, Intruder No. 1, with Mrs. Temple tied and blindfolded, was driving around the city, stopping occasionally for short periods where, at one stop, someone threw something in the back seat and said, 'I have got it,' and at another stop someone came to the car and said, 'You will have to come and help me,' and after being gone for five minutes returned and placed something heavy in the back seat which was subsequently removed from the car. The car was abandoned and Mrs. Temple called the police from a nearby residence.

At a second Fresno Police lineup, Mrs. Temple, upon observing appellant Ebell, could not positively swear that he was one of the intruders, but she testified that the shoes worn by appellant Ebell during the lineup were similar, if not identical, to the shoes worn by the first intruder and that the shape of the shoulders, being stooped to a certain extent, was similar.

This was the order of the introduction of the testimony of Mr. and Mrs. Temple and presents the problem as to whether or not this is sufficient proof of a conspiracy at this point before the introduction of the testimony of witnesses Mr. and Mrs. Brown and subsequent testimony.

Mr. Brown testified that he had known appellant Black for two years, that on Sunday, November 19, 1961, he and his wife went to Black's residence when appellant Ebell and Mrs. Ebell were present, that Black stated that he wanted to talk to Brown and they went into the kitchen, leaving Ebell and Mrs. Brown in the front room; that Black stated to Brown that he had a job which was to take place on the following Tuesday and asked if Brown would be interested, that Brown's part would be to tie, gag and blindfold some people and that he would get $500 for his part, and if the total job was $10,000, he was to receive $1,000. Brown asked for time to think it over and stated he would let Black know by at least 8 o'clock of the morning on the following Tuesday. After returning from the kitchen, Black and Mr. Brown joined Ebell and Mrs. Brown. On the following Tuesday Mr. Brown telephoned Mr. Black that he was not interested in the proposition. Brown also testified that on the following Friday, November 24th, the appellant Black bought him a drink and Brown told appellant Black that he 'didn't expect it to be that large a job.'

Mrs. Brown testified that she had gone to appellant Black's residence with her husband on November 19, 1961; that she remained in the front room with appellant Ebell while her husband and Black went into the kitchen; that she asked Ebell the nature of the conversation and Ebell answered that they were talking business. She asked Ebell, 'Is it anything that could get Dudley into any kind of trouble?' and Ebell replied, 'If he can't be trusted, now is the time to tell him to cut out or Blackie wouldn't hesitate to bury him.' She went toward the kitchen to talk to her husband and appellant Black told her to go back to the living room. After leaving the Black residence, Mr. Brown informed her of the conversation in the kitchen with Black, and she testified that on Friday night, November 24th, following the robbery, she had a conversation with Black during the time that he was driving her home when Black stated to her, '* * * Dudley [her husband] was pretty weak, and he said that he didn't know how to go out and get what he wanted. He said that he was a man that knew what he wanted, and knew how to get it,' and also stated, 'Look at me, I am driving an old clunker, and here I am sitting on $20,000.'

Other evidence introduced was the testimony of witness Hayes that he had known appellant Black for two and a half...