People v. Cobb

• Decision Date: 23 September 1955
• Docket Number: Cr. 5714
• Citation: 287 P.2d 752,45 Cal.2d 158
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James COBB and Walter Ray Ault, Defendants and Appellants.

Page 752

287 P.2d 752

45 Cal.2d 158

The PEOPLE of the State of California, Plaintiff and Respondent, v. James COBB and Walter Ray Ault, Defendants and Appellants.

Cr. 5714.

Supreme Court of California, In Bank.

Sept. 23, 1955.

Lowell Lyons, Los Angeles, and Cletus J. Hanifin, El Monte, for appellant Cobb.

Eller & Winton, Jay J. Eller and Howard L. Winton, Beverly Hills, for appellant Ault Edmund G. Brown, Atty. Gen., and William E. James and Elizabeth Miller, Deputy Attys. Gen., for respondent.

SPENCE, Justice.

Defendants Cobb and Ault appeal from judgments of conviction for attempted robbery. Defendant Cobb also appeals from an order denying his motion for a new trial.

The information charged both defendants with attempted robbery of one Henry Shelton, an employee of a liquor store. Each defendant admitted certain alleged prior convictions. The jury returned verdicts of guilty on the attempted robbery charges. Although there was a single trial, defendants have taken separate appeals; and as different points have been raised, each appeal will be considered separately, but without repeating the discussion of those points which are common to both appeals.

The evidence adduced by the People, through the testimony of Henry Shelton, the employee in the liquor store, and of the police officers Hernandez and Leonard, who were present at the time of the attempted robbery, showed that defendants Cobb and Ault entered the store; that Cobb asked Mr. Shelton for some cigarettes and gave him a bill, and then said 'This is a stick-up!' The police officers also testified that they shouted 'Police! Drop your guns!' An exchange of bullets ensued, with the result that both defendants were wounded.

Officer Sluder testified that defendant Ault had subsequently told him that he (Ault) and Cobb had been drinking; that the subject of pulling a stick-up was discussed as a means of obtaining money; that Ault said he knew someone who had a gun; that Ault and Cobb drove to the home of a Mr. Sherer and that Cobb entered and returned with a gun; that they drove around looking for a store to stick up; that Ault had previously told Cobb about a liquor store; that they parked the car around the corner from this liquor store and entered; that once they were inside, Cobb asked for a package of cigarettes; that Cobb then pulled out the gun and told the clerk that it was a 'stick-up.'

Appeal of Defendant Ault

Defendant Ault contends that the court committed prejudicial error in not investigating a private communication between a juror and a relative of one of the defendants. This communication occurred during a recess taken at the end of the first day's proceedings, and this fact was brought to the court's attention. At the beginning of the next day's proceedings the court discussed the seriousness of such behavior and warned that any repetition of such conduct would be dealt with severely. It does not appear that the communication related to the trial, and it was therefore not an abuse of discretion to fail to investigate the communication or to declare a mistrial. People v. Phelan, 123 Cal. 551, 567-568, 56 P. 424; People v. Dunne, 80 Cal. 34, 36, 21 P. 1130; People v. Quiel, 68 Cal.App.2d 674, 679-680, 157 P.2d 446; People v. Henry, 132 Cal.App. 557, 562-563, 23 P.2d 77; People v. Murphy, 92 Cal.App. 729, 730-731, 268 P. 927. The mere showing of such a communication does not raise a presumption that the juror was improperly influenced. People v. Dunne, supra, 80 Cal. 34, 36, 21 P. 1130; People v. Henry, supra, 132 Cal.App. 557, 562-563, 23 P.2d 77.

Defendant Ault further contends that there was not sufficient proof of the corpus delicti, and that his conviction was improperly based on his extra-judicial confession. A conviction cannot be had upon a defendant's extra-judicial confession without independent proof of the corpus delicti, but in the instant case, sufficient independent evidence was introduced for that purpose. All that need be shown by independent evidence before a confession may be introduced is that a crime has been committed by someone. People v. McMonigle, 29 Cal.2d 730, 738, 177 P.2d 745; People v. Selby, 198 Cal. 426, 438, 245 P. 426; People v. Beltowski, 71 Cal.App.2d 18, 20, 162 P.2d 59; People v. Locurto, 97 Cal.App. 185, 191, 275 P. 462. Proof of the corpus delicti does not require proof of the identity of the perpetrators of the crime, nor proof that the crime was committed by the defendant. People v. Amaya, 40 Cal.2d 70, 76, 251 P.2d 324; People v. Leary, 28 Cal.2d 740, 745, 172 P.2d 41; People v. Selby, supra 198 Cal. 426, 434, 245 P. 426; People v. Bollinger, 196 Cal. 191, 200, 237 P. 25; People v. Ward, 134 Cal. 301, 306, 66 P. 372. Thus, in the present case, the corpus delicti of attempted robbery was proved when eye-witnesses testified that two men entered the store and one of them brandished a gun and said, 'This is a stick-up!' The corpus delicti having been established, there was no error in admitting defendant Ault's extrajudicial confession.

The contention that Ault's confession was rendered involuntary and inadmissible because of his poor physical condition cannot be sustained. The evidence discloses that there was no force or violence used on defendant Ault, and that there were no promises of reward or immunity from punishment, and that he spoke voluntarily. At the beginning of the interrogation Ault was asked how he felt and he answered that he felt better. Thus, even though Ault may have been under the influence of a drug, may have received blood transfusions and may have been in poor physical condition, the confession was admissible, and these factors merely went to the weight to be attached to it. People v. Harrison, 41 Cal.2d 216, 218, 258 P.2d 1016; People v. Amaya, supra, 40 Cal.2d 70, 76, 251 P.2d 324; People v. Lehew, 209 Cal. 336, 340-341, 287 P. 337; People v. Miller, 135 Cal. 69, 71-72, 67 P. 12; People v. Duncan, 72 Cal.App.2d 247, 251-253, 164 P.2d 313. Having concluded that defendant Ault's confession was properly admitted, it appears that there was abundant evidence to support his conviction.

Appeal of Defendant Cobb

Defendant Cobb contends that the court erred in 'making an issue' of his prior convictions in view of the fact that he had previously admitted these prior convictions. This contention has no merit. Although Penal Code, section 1025, provides that 'the charge of the previous conviction must not be read to the jury, nor alluded to on the trial', the testimony of a defendant who has testified in his own behalf may be impeached, like that of any other witness, by proof that he has suffered prior convictions of felonies. People v. David, 12 Cal.2d 639, 646, 86 P.2d 811; People v. Romer, 218 Cal. 449, 452, 23 P.2d 749. This is precisely what occurred in the present case. Defendant Cobb was...