People v. O'Farrell

• Decision Date: 28 May 1958
• Docket Number: Cr. 1352
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Taylor O'FARRELL, Defendant and Appellant.

Page 1002

325 P.2d 1002

161 Cal.App.2d 13

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Taylor O'FARRELL, Defendant and Appellant.

Cr. 1352.

District Court of Appeal, Fourth District, California.

May 28, 1958.

Rehearing Denied June 17, 1958.

Hearing Denied July 23, 1958.

Enright, Von Kalinowski & Levet, by William B. Enright, San Diego, for appellant.

Edmund G. Brown, Atty. Gen., Morris Schachter, Deputy Atty. Gen., for respondent.

GRIFFIN, Justice.

Defendant-appellant was charged in count 1 of an information with armed robbery of one George Parrocha (violation of sections 211, 211a Penal Code) on the night of December 25, 1956; in count 2 with the crime of burglary while armed with a deadly weapon (violation of sections 459-460 Penal Code); in counts 3 and 4, kidnaping Fred C. Paul and George Parrocha for the purpose of robbery (violation of section 209 of the Penal Code); and in count 5 with armed robbery of $723.15, property of the La Jolla Beach and Tennis Club, taken from the person and possession and immediate presence of its employees therein named. He was further charged with five prior felony convictions and that he served terms therefor in a state's prison. He pleaded not guilty to the charges and admitted the prior convictions. A jury trial resulted in a conviction on all counts as charged. After a new trial was denied he was sentenced to prison on counts 1 and 4 to run concurrently and on counts 3 and 5 to run concurrently, but consecutively with counts 1 and 4, and count 2 to run concurrently with counts 3 and 5.

On Christmas Eve, about midnight, the bartender of the La Jolla Beach and Tennis Club placed about $700 in a bag and deposited it in the company's safe located in a room near the bar. About that time one Denton, a janitor on night duty, arrived and checked the various rooms and found everything in order. He then lay down in the employees' ladies' rest room located near the kitchen, just off from the main dining room. He was later awakened by three men. One had a gun and they ordered him to turn over. They tied his hands and demanded information as to the location of the safe. He told them. About that time the telephone rang and they ordered Denton to answer it. It was the night watchman in the club portion of the building calling. After telling Denton what to say, he was taken back to the rest room, retied, and defendant, who had an automatic caliber pistol, remained with him while the other two, one of whom had a crowbar, located the safe. Later, the chief cook, Parrocha, arrived by the back door entrance and tried to enter the door but found it locked. He started calling to Denton. Defendant again released Denton and he was told to go and open the door to the kitchen. As he did so, Parrocha, who had gone back upstairs, came down, and as he entered the door, defendant held an object at his back and told him to go straight through the kitchen, down the hall, and into the ladies' rest room. He did so and when he arrived his feet and hands were tied. His wallet, containing about $20, was taken from him. One Paul, the pantryman, came to work shortly after this. He was unable to gain entrance to the kitchen. He went back upstairs and someone called to him to come back. He did so and as he approached the door a man wearing a silk stocking mask pulled a gun and ordered him to go to the ladies' rest room with the others. He was tied and searched but he had no money with him. Later, one Dursley, maintenance man, arrived and saw a Mrs. Perkins, the maid, dusting the piano in the dining room. About that time defendant arrived on the scene with a silk stocking mask over his head and with a gun in his hand, ordered her to go to the rest room. She thought he was joking and told him so. He then told her it was 'no monkey business' and she followed orders. Dursley went ahead and saw the others tied and lying on the floor of the rest room. He then realized it was a holdup. They were likewise tied up. All three robbers were wearing white waiters' uniform coats which they found there, and all were masked with silk stockings. A light banging noise was heard (banging on the safe in the nearby room). This continued for some time. Before the three robbers left they stacked a table against the restroom door, and the sound of a sudden departing automobile was heard. The employees later gained their freedom and reported the robbery. The manager made an investigation and found one of the windows, which ordinarily was left locked, had been opened and the screen had been taken off. The door to the room where the safe was located was damaged. The safe had been ripped open and about $720, kept in a locked cloth money bag, and certain Christmas money for the employees, consisting of dollar bills in envelopes, was missing. About June 9, 1957, defendant was apprehended and placed in a lineup at the jail with other prisoners. They were required to make certain audible statements within the hearing of these several employees. After a request to have defendant speak in a louder tone the maid, Mrs. Perkins, said she identified the voice of defendant as being the person who held the gun on her and demanded she leave the dining room and go through the kitchen into the rest room with the others, where he tied her up; and that he was the one who did most of the talking. She also said the build of defendant, as she observed him in the courtroom, was pretty much similar; that she could see 'pretty clearly' his features, through the silk stocking, and that he had no scars or distinguishing features on his face; that she was not sure as to whether he wore a slight mustache or was clean shaven; that she never before heard a voice like his and she was 'certain' of it; that he was wearing a black hat, khaki trousers and a white waiter's jacket; that she recognized his voice in the lineup and selected his photograph from others as being the attacker; that she was certain in her mind of her identification of him and there was 'no doubt'; and that had she not recognized his voice she would not say she otherwise recognized him. Other employees would not testify that they recognized any of the voices in the lineup as being that of any one of the three robbers. They did testify generally as to the particulars above described but failed to identify defendant or his voice. They said he was masked and they were too nervous to remember much about it; that it was too dark in the ladies' rest room to see and they were required to lie face downward.

At the trial, one of the robbers, Albert Davis, who was then serving time in Chino for another offense, testified for the prosecution after stating that the officers had agreed not to prosecute him on this charge. He definitely testified that he, defendant O'Farrell, and one Bert Frilot, who lived in Santa Monica, decided that evening to rob some place; that they proceeded to La Jolla and arrived there after midnight; that they had one gun between them, a drill and a bar; that between 3 and 4 a. m. they entered the beach club from a back window and while looking for the safe found the watchman asleep in the rest room on a lounge; that they tied him up and started looking for the safe; that defendant, with the 38 automatic pistol 'stood point' watching over him; that while they were drilling the safe the telephone rang and they took the watchman to the telephone and told him what to say; that they returned him and tied him up again; that sometime later they heard a noise from the keys of the piano (the maid dusting), and O'Farrell brought in the maid and another man and tied them up; that another employee or two knocked at the kitchen door and the watchman was untied and let one of them in; that they were taken to the rest room and tied up and one was searched and he had no money; that they took about $600, which was contained in a cloth money bag, from the safe, and certain envelopes containing Christmas money; that they all wore waiters' jackets, silk stocking masks, and garden gloves, and that they had a crowbar and a drill; that O'Farrell gave most of the orders to the employees; that the other robber, Frilot, was, at the time of trial, in custody on a federal charge in Georgia; that after the robbery, which took two or three hours, they pushed a table in front of the door, took off their waiters' coats, and left in their car by way of Warner's Springs and stayed there until dusk; that while in the car they divided the money which had been contained in the cloth money bag and in the envelopes. Defendant failed to take the witness stand and offered no evidence at the tial.

Defendant concedes that identification can be made on the basis of voice recognition, but claims that, as a matter of law, there was no sufficient credible evidence of voice recognition which would corroborate the testimony of the accomplice Albert Davis. In this connection it is argued that different words were used by the defendant in the lineup from those used by the assailant and no proper comparison could be made; that Mrs. Perkins' testimony as to defendant's voice was equivocal, and since the other employees could not identify his voice little credence should be placed on the maid's testimony in this respect. It clearly appears that the employees who testified in respect to the details of the robbery fully corroborated the testimony of the accomplice in every respect except the possible identification of the defendant. From his testimony, which was related in similar detail, it affirmatively appears that defendant was present on that occasion. The maid was quite positive of defendant's identification from his voice and his build. The question of the weight to be given her testimony was for the jury to determine. People v. Waller, 14 Cal.2d 693, 700, 96 P.2d 344; People v. Knowles, 35 Cal.2d 175, 217 P.2d 1. The jury decided adversely to defendant's contention. It cannot be said...