People v. Darcy

• Decision Date: 11 January 1951
• Docket Number: Cr. 4474
• Citation: 226 P.2d 53,101 Cal.App.2d 665
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. DARCY.

Page 53

226 P.2d 53

101 Cal.App.2d 665

PEOPLE v. DARCY.

Cr. 4474.

District Court of Appeal, Second District, Division 1, California.

Jan. 11, 1951.

Hearing Denied Feb. 8, 1951.

Eugene V. McPherson, Los Angeles, for appellant.

Fred N. Howser, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

DRAPEAU, Justice.

George Speropoulos was an old man. He owned the Belmont restaurant in San Pedro. It was a small restaurant, with a bar along one side of the room, and a few open booths opposite the bar.

Mr. Speropoulos did most of the work himself. He cooked at one end of the bar; he waited on customers, and served them beer or wine if ordered. Occasionally, when business was good, he hired waitresses to help him.

About midnight of July 11, 1949 he was working alone. Three ladies came in. Mr. Speropoulos had invited them to a chicken dinner which he planned to cook at that time. The ladies seated themselves on stools at the bar. Also at the bar was an old friend of Mr. Speropoulos, Arnfin Simonsen, and a Mexican.

A little after twelve the defendant and a companion named Henry Thwaits staged a hold-up. They had guns--automatics--in their hands. In fact, during all the time they were in the restaurant the men held their guns in their hands.

Thwaits was at bar; defendant was at the foot of a flight of stairs leading to an upstairs office room. Defendant had a handkerchief tied over part of his face. Thwaits was a big man, about six feet tall, weighing about 200 pounds; defendant was smaller.

Thwaits made Mr. Speropoulos, Mr. Simonsen, and the Mexican lie face down on the floor. Then he herded them into the men's restroom. He told them, 'If you don't do what I tell you to do I'll kill you.' The door of the restroom opened into the restaurant room. Thwaits struck all three men on the head with the barrel of his gun, with such force as to draw quantities of blood.

Defendant, still standing on the stair landing, told the ladies to go into the men's restroom too.

'We can't go in there,' said one of the ladies; 'that's the men's room.'

'Get in three, you dope,' said the other lady, 'this is a stick-up.'

'That's right, ladies,' said the defendant, 'get in there.'

The third lay had gone to the ladies' room, and was not seen during the action which followed.

Thwaits went into the restroom with the men and women, and told them to keep their faces to the wall. Defendant came to the door of the restroom and said to Thawits, 'There is no money upstairs.'

Thwaits said to Mr. Speropoulos, 'Come with me.' He took the the old man upstairs, bleeding from the wound on his head. Defendant remained in the restroom, guarding the people there.

Upstairs Thwaits three times told Mr. Speropoulos, 'Listen, I know you have got some money here. If you don't give me the money I am going to kill you.' The third time he violently threw the old man against a davenport, so that his glasses flew off. Shoving the muzzle of his automatic against the old man's chest Thwaits said, 'Say yes or no.' Mr. Speropoulos gave him $800 which he had hidden behind his mother's picture. Still holding the gun on him, Thwaits brought him back to the restroom.

Other money was taken from the person of Mr. Speropoulos, and from his cash register. Money was taken from the person of Mr. Simonsen. Purses with money, checks, and odds and ends peculiar to women, were taken from the two ladies.

When Mr. Speropoulos was brought back to the restroom, Mr. Simonsen looked around, and Thwaits again hit Mr. Simonsen with his pistol barrel, again drawing blood in copious quantities.

The two robbers left with the loot. A few minutes later the ladies and the men cautiously came out from the restroom.

Leaving the restaurant, the two robbers started running. Each of them had his car parked nearby.

Then fate took a hand. A preacher was passing by in an automobile. He saw two men running, one tall and heavy set, the other shorter and slighter. The smaller man had a ladies purse with its straps dangling from his hands. The preacher saw an automobile start with its lights off, followed it, took its number, went to the San Pedro police station, and gave the police the license number.

An all-units radio alarm was immediately broadcast to radio cars in the vicinity. One of these radio cars saw an automobile, going about 25 miles an hour. Following closely behind it, check was made by radio with the police department, to make sure of the wanted number. It was. The car belonged to defendant, and the license number was his license number.

The officers in the radio car turned on the red light and siren. Instead of stopping, defendant started off at about 70 miles an hour, followed by the radio car. In turning a corner, another radio car, joining in the chase, cut in ahead of the first radio car. And so the three cars went careening through the night, one behind the other.

A police officer in the radio car closest to defendant's car shot at it twice with a shotgun loaded with buckshot. The car swerved off the street, across lawns, and struck the front porch of a house. Defendant emerged, ran between two houses, hid himself in a lath-house in a back yard, and was finally captured by other patrolmen. He landed in jail between 12:45 and 1:00 a. m.

Later, other officers, following the path of the fleeing car, found in the street a purse taken from one of the women in the restaurant. Between the two houses where the defendant fled, ten $5 bills and twenty $1 bills were found. On the lawn in front of the house was a $1 bill.

Defendant was searched at the police station, and the officers found in his possession a roll of 5-cent pieces wrapped in paper. Such a roll of nickels had been taken from the restaurant. Talking with police officers afterwards, defendant said that he wished Thwaits would be picked up, that he did not want 'to ride this beef alone.'

Every one of the victims--the restaurant man, his friend, and the two women--identified the defendant as one of the men who robbed them.

Defendant was charged with one count of kidnapping with violence, four counts of robbery, and three prior felony convictions. He admitted the prior convictions, and was convicted on all five counts, as charged. The jury determined the punishment for kidnapping to be life imprisonment without parole, and each of the robbery counts to be of the first degree. On the kidnapping count defendant was sentenced to the penitentiary for life, without possibility of parole. On each of the robbery counts he was sentenced for the term prescribed by law. All counts to run concurrently.

From these judgments he appeals.

Defendant urges: (a) that the evidence is insufficient to support the convictions; (b) error in admission of evidence; (c) error in instructions given; and (d) that sentences were imposed for kidnapping and for robbery, whereas but one criminal offense was committed, for which but one sentence could have been imposed. These will be considered in order.

The objection that the evidence is insufficient may be summarily disposed of. The record has been read, and supports beyond all reasonable doubt the findings of the jury.

Defendant took the witness stand; denied having any part in the crimes; said that he was driving his automobile when he saw Thwaits, who hailed him and got in his car; that he drank whiskey which Thwaits gave him, on top of beer which he had been drinking; that Thwaits suggested they rob a place and that he declined to have any part in it; that he became sick from the liquor he had consumed; that two men got into the rear seat of the car, and something was said about holding up an old man in San Pedro; that at that time he passed out 'from the effect of the liquor or something;' and that he knew nothing more until his automobile crashed and he ran from it and hid in a chicken coop.

It is elementary law that it was the function of the jury to believe or to disbelieve defendant's testimony; it was their sold province in the domain of questionable facts to declare the truth. By their verdicts they found the truth of the People's case. This court is in complete accord with that finding. The only thing that may possibly be said for defendant is that Thwaits wielded the gun in the assaults upon the two men, and brutally manhandled the old man in the upstairs room.

At the close of direct examination of defendant, counsel for the People read to the jury records of three prior convictions which defendant admitted he had suffered. This was for impeachment under sec. 2051, Code Civ.Proc. One of these records showed that defendant was on parole at the time of the commission of the crimes charged.

The documents consisted of (1) the certification of Clinton T. Duffy, Warden of San Quentin Prison, as to his official position, that he has in his custody records pertaining to defendant, when defendant was received at San Quentin, under commitment from what court and for what offenses, the date his terms were fixed and what they were, the date he was paroled and discharged from parole, that the copies of the commitment and fingerprints attached are true and correct copies of originals in his custody; (2) fingerprint card with defendant's signature; (3) photograph of defendant under prison number;...