People v. Collins

• Citation: 117 Cal.App.2d 175,255 P.2d 59
• Decision Date: 03 April 1953
• Docket Number: Cr. 4918
• Parties: PEOPLE v. COLLINS.
• Court: California Court of Appeals

Page 59

255 P.2d 59

117 Cal.App.2d 175

PEOPLE v. COLLINS.

Cr. 4918.

District Court of Appeal, Second District, Division 2, California.

April 3, 1953.

Rehearing Denied April 15, 1953.

Hearing Denied April 30, 1953.

John Collins in pro. per.

Edmund G. Brown, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

Appellant was accused by information of five felonies: (1) assault with a deadly weapon with intent to commit murder upon Joseph Burger; (2) burglary of the home of Joseph and Lillian Burger; (3) robbery of Joseph Burger by taking a $2,000 ring from his person; (4) grand theft by taking $19,000 worth of jewelry and money from Joseph and Lillian Burger and (5) assault with a deadly weapon upon Lillian Burger. In addition thereto, it was charged as to each count that appellant had been convicted in a county court of New York State of robbery and had served a term of imprisonment therefor in the state prison. Being without funds, a deputy public defender was appointed to defend him, but after about one month's service was relieved of the assignment and appellant thereafter represented himself. A jury found him guilty of (1) assault with a deadly weapon, a lesser included offense, (2) burglary in the first degree, (4) grand theft, and (5) assault with a deadly weapon, but not guilty of robbery (count 3). He was found to have suffered a prior conviction of a felony and a term of imprisonment. Probation was denied and he was sentenced for the term prescribed by law on all four counts of which he stood convicted, the sentences on 1 and 2 to run consecutively, and count 4 to run consecutively to counts 1 and 2; and count 5 to run consecutively to counts 1, 2 and 4.

On this appeal reversal is demanded on the ground of insufficiency of the evidence; irregularity in the arraignment; denial of due process of law; errors in the rulings of the court at the trial.

Evidence Sufficient

Joseph Burger is an auctioneer. He and his wife Lillian arrived at their home about 12:30 a.m. February 18, 1952. They brought two suit cases of diamonds, watches and money. Mr. Berger had been working with jewelry for more than 35 years and was familiar with values of his merchandise. They retired about one in the morning. Mrs. Burger was awakened about 3 a. m. to find her head in pain and herself on the floor, evidently caused by the strange man then beating her husband. She made her escape to the home of Mr. Buckridge, a neighbor who immediately called the police, then went to the Burger home and found it in a state of confusion and blood on the wall. One screen was propped open with a pillow. The ambulance took the Burgers to the hopsital where they were confined for two weeks. They were examined by three physicians. Mr. Burger had multiple scalp lacerations, ecchymosis and swelling on face and over his shoulders, right forearm, left wrist, left foot and right knee. His nose, his jawbone and his zygoma had all been fractured. The wounds on his head were deep and multiple and in the opinion of the physicians had been caused by the application of external force. The injuries to Mrs. Burger were similar. She had blood in the left eye and a zygomatic fracture, and suffered injuries to her neck, hip, right foot and lower spine, all of which had been caused by the application of considerable external force.

The instrumentality used by the assailant is identified by the fact that Mrs. Burger had standing on her dining room table a pair of silver candlesticks. At the time of the trial one of them bore a reddish brown stain.

No one had been given permission to enter the Burger home. About two weeks prior to the burglary, the maid in the household saw appellant near the garage about 8 o'clock in the evening and again at 10 p. m. On February 16 he called to collect papers.

As soon as the alarm reached the police, patrol officers Lacher and Randolph proceeded toward the Burger residence. Two blocks west of there they saw the parking lights of a sedan. As the officers approached it, a man came from behind, entered the front seat and drove rapidly toward the patrolmen. Officer Lacher turned on his red rights and headed straight toward the sedan, but by a sudden burst of power it drove around them. The officers made a U-turn and began the chase. Officers Giroux and Niediewski, hearing the broadcast, joined in the pursuit. The elusive sedan going at a speed of about 55 miles per hour failed in making a turn and struck a signal light standard. As Officer Lacher drove straight to the sedan he saw appellant jump out and run. He was captured about 50 yards away. He wore blue trousers, a beige knit sweater and was without shoes.

The trunk compartment of the sedan opened in the crash and a suit case had fallen to the pavement and lay open. It contained diamond rings and a canvas sack with money. The suit case which remained in the trunk compartment contained watches in boxes. These were the suit cases which had been taken from the Burger residence.

Officers Girous and Niediewski visited the Burger residence. They found the bedroom disarranged and spattered with blood, some soil on the floor and a broken urn. Also, Giroux found the shaft of a candlestick lying opposite the living room door with a reddish brown substance which was found to be human blood by Mr. Ray Pinker, technical director of the scientific crime investigation laboratory of the Los Angeles Police Department. Also, he found the sweater and trousers of appellant had human blood on the cuff of the sweater and on the front of the left trouser leg. He found that the five waddings of cotton contained human blood. The waddings had been used with water by Officer Jones to remove the stains from defendant's hands, wrists and right foot.

Officer Jones visited the Burger residence at 1 p. m. He found stains of dried blood from the doorway into the bedroom. They seemed to terminate at the northeast corner of the bedroom next to the bed where there was dry blood, pieces of broken pottery, dirt, and glass--apparently from a mirror. He found a blue coat button under the bed similar to that found by Officer Giroux. He found a hole in the screen which was open in the den, and a bookcase pushed away from the window.

The fingerprint experts of the Los Angeles Police Department identified a photograph of a partial palm print taken from the window sill in the Burger's den as that of appellant. It was identical with the impression obtained from the defendant at the Venice jail on February 21 in twenty points. Only ten points of similarity are essential to a satisfactory identification. Fingerprint impressions of the defendant were identical with the fingerprints forwarded from a New York prison as being the prints of John William Collins.

Appellant gave rambling, fantastic and unconvincing testimony of his movements on the morning of February 18. His statement that he had been beaten and kicked in the face and stomach when arrested was refuted by the police officers to the satisfaction of the jury. Also, Dr. Miller, a licensed physician, examined appellant at 5:40 a. m. on February 18 and found that no clothing had been removed, no evidence of physical injury appeared, but appellant lay writhing, moaning and unresponsive to questions. On February 26 appellant was examined by Dr. Grover Christensen, a licensed physician and surgeon, who found no evidence of the defendant's having been beaten on the face or head or abdominal wall.

From the foregoing facts there could be no reasonable doubt of the guilt of appellant. The weight to be given to the testimony and the credibility of witnesses are matters for the jury and their finding upon such matters cannot be set aside on appeal unless it can be shown that there was no evidence which as a matter of law would justify the conviction. People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Thomas, 103 Cal.App.2d 669, 672, 229 P.2d 836. The asserted inconsistencies in the testimony such as Mrs. Burger's statement that the burglar wore heavy shoes with which he kicked her, the finding of a hat in the Burger bedroom of the size 7 1/4 whereas defendant claims to have worn size 7, are petty criticisms of the record and do not affect the general finding of the jury as to the sufficiency of the evidence generally to support the conviction.

Due Process Not Denied

Appellant makes a number of assignments involving due process. He contends that at the time of his arrest he was beaten by the officers to force him to sign a confession and he complains that there was a delay in taking him before a magistrate for hearing. There is no proof in the record of any delay in bringing him before the committing magistrate or in the filing of an information. On February 27 his preliminary examination was continued to March 5 on which day the commitment was signed. But conceding appellant's contention as to a delay in presenting him before the magistrate, Penal Code, sec. 825, no prejudice appears to have been suffered thereby. His trial in the superior court was without event that might have arisen from a delay in presenting him to the municipal judge. People v. Stroble, 36 Cal.2d 615, 626, 226 P.2d 330, affirmed, Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872. All delays that occurred and all continuances that were granted at the preliminary hearing are presumed to have been with appellant's consent in the absence of proof to the contrary. Moreover, errors committed by the examining magistrate, if any, cannot constitute reversible error on appeal for the reason that they could not affect the jurisdiction of the superior court, after appellant's due and prompt committal. People v. Stuckrath, 64 Cal.App. 84, 87, 220 P. 433. Neither was there any delay in the filing of the information. The commitment of appellant was signed on March 5; the information was filed on March 20. Penal Code, sec. 809. ...