People v. Jackson, Cr. 6627

• Decision Date: 05 August 1960
• Docket Number: Cr. 6627
• Citation: 6 Cal.Rptr. 884,183 Cal.App.2d 562
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur JACKSON, Willie Gene McGee and O. T. Roberts, Defendants. Willie Gene McGee, Defendant and Appellant.

Page 884

6 Cal.Rptr. 884

183 Cal.App.2d 562

PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur JACKSON, Willie Gene McGee and O. T. Roberts, Defendants Willie Gene McGee, Defendant and Appellant.

Cr. 6627.

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

Aug. 5, 1960.

Willie Gene McGee, in pro. per., for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., for the People.

LILLIE, Justice.

This is an appeal from a judgment of conviction and order denying a motion for new trial. Defendant, appellant, herein, and two co-defendants, Jackson and Roberts, were charged with 5 counts of robbery in violation of Section 211, Penal Code; and it was alleged in connection with each that they were armed with deadly weapons. A jury found them guilty of first degree robbery on all counts and armed as charged. Only defendant McGee appeals.

Appellant has appeared in propria persona. The text of his brief consists of a disorganized running account of certain incriminating testimony, interspersed with numerous suggestions of error and various citations of authority; however, we have ascertained his main points on appeal to be that--the evidence is insufficient to connect him with the commission of the robberies, it was error for the trial court to admit in evidence a knife (Exhibit 1), certain instructions relating to circumstantial evidence should have been given, and he was denied due process by virtue of a 6-day detention before having been taken before a magistrate.

Relative to his first claim, we accept as established all evidence, and all reasonable inferences to be drawn therefrom, in favor of the judgment of conviction. People v. Jackson, 152 Cal.App.2d 397, 313 P.2d 931. The evidence discloses the commission of five first degree robberies--the first four on June 24, 1958, at Alben Sales, Inc., and the fifth at the Avalon Gift Shop on July 2, 1958. Around 10:00 a. m. on June 24, at least three men, including this appellant, Jackson and Roberts, entered the premises of Alben Sales, Inc. armed with a knife and gun. Jackson made inquiry at the cashier's window while appellant entered the office pulling a knife from his coat and ordering the manager, Alexander Spitzer, and a secretary, Mary Diblosi, to lie down. Jackson tied Spitzer and later took his wallet containing $1,600 (Count 1). A man entered the bookkeeping office where Ben Hersh, a salesman, was counting money. When asked for the money, Hersh, thinking it was a joke, did not turn around, whereupon he was knocked unconscious and $400 was taken from him (Count 4); $20 was taken from the bookkeeper, Emanuel Rosenberg (Count 3). Roberts stuck a gun into the side of Jesse White, a truck driver who was putting up a sign at the door, and told him to go to the rear of the store. At that time, another salesman, Bernard Friedman, returning from a warehouse outside and finding the door locked, rattled the knob and was admitted by Roberts who, with a gun, forced him to the rear of the store, passing appellant who was watching the office. White and Friedman were ordered to lie on the floor and $160 was taken from Friedman (Count 2).

On July 2, three men entered the Avalon Gift Shop and looked around; the owner, Mrs. Davis, was present with two customers, Wilma Curry and Festeva Mathis. Mrs. Davis walked over to wait on Jackson. He seized her, poking a gun into her stomach, and directed the two men to take the women customers to the rear of the store. As he pushed Mrs. Davis from the shop into the rear living quarters, she saw the back of appellant as he was locking Mrs. Mathis in the bathroom. Appellant them came up behind Mrs. Davis, grasped her against him and started to open a straight-edge razor; he pushed her into the bedroom where Mrs. Curry was being held Mrs. Davis escaped out of another door and called police. $9.35 was missing from the cash register (Count 5).

On August 7, police, acting on information obtained from Detective Wright, went to the home of Alva Williams with a photograph of appellant. After knocking on the door for some time they were finally admitted by Mrs. Williams. While talking to her in the living room, one of the officers, through an open door, observed appellant in bed. He, then Mrs. Williams, were arrested and a search disclosed a knife under appellant's mattress which they left there, unaware that a knife had been used in the first robbery. The next day appellant went with officers to the home of Mrs. Bolton, Mrs. William's sister, from where they all proceeded back to Mrs. William's house where Mrs. Bolton opened the door and officers removed the knife.

In his defense appellant testified at the trial denying that he was in any way involved in the robberies, but admitted that Exhibit 1 was found under his mattress at the time he was arrested.

In considering appellant's claim that the evidence was insufficient to connect him with the robberies, we relate certain identification testimony placing him at the scene as a participant. Relative to those occurring on June 24 at Alben Sales, Inc. (Counts 1 through 4), Mr. Friedman testified that during the robbery he saw appellant McGee 'standing with his back to the front door, watching the office' and that he 'passed by him maybe a foot' away when ordered to go to the rear of the store by co-defendant Roberts. He described appellant's appearance and testified '(T)he only thing I saw when I passed by is the face. In fact, he looked at me. Our eyes really met. He looked at me at the same time I looked at him.' On cross-examination it was suggested to him by defense counsel that appellant might have been there on business, but Mr. Friedman testified further that it did not look to him 'like he was there on business.' This query obviously did not go to the identification of appellant but to his purpose in being in the store. Mary Diblosi, although unable to make positive identification of appellant as one of the robbers, testified that 'the (his) profile is similar' to that of the man who held the knife (which she identified as looking like Exhibit 1) on her during the robbery, although she could not be sure. As to the robbery on July 2 (Count 5) at the Avalon Gift Shop, Mrs. Davis testified that when Jackson pushed her through the living room into the kitchen she saw a man who 'was either him (appellant) or someone that looked exactly like him' locking the other woman into the bathroom and that he said to Jackson: 'Shut her up, even if you have to kill her'; that Jackson then shoved her over to this man (appellant) and he came up behind her and pinned her against him. Mrs. Mathis testified that she was not sure, but that appellant looked like the man. On cross-examination she was reminded that at the preliminary hearing she did not testify that 'this fellow with the razor looked like Mr. McGee' to which she replied: 'No, I didn't, but since then it seems to me that his face has come to me, because during that time I was so excited, and after seeing him it seems to me that I can remember that face more clearly now than I did at the time I was here before.'

Appellant argues that inasmuch as not all of the witnesses were able to testify that he was at the scene of the robberies, other witnesses were uncertain in their identification of him and some could only testify that he resembled one of the robbers, the evidence was insufficient to connect him with the commission of the crimes. At the outset, the record fails to support such a factual argument for one of the witnesses (Friedman) definitely identified appellant; and although several could not make positive identification, they described the robber as 'similar' to appellant, or one 'who looked exactly like him' or 'like him'; and legally, such a position has no merit, for weakness of identification and uncertainty of memory do not render evidence of identity worthless but merely constitute factors for the consideration of the trier of fact. And any factual finding on the issue of identification this court may not disturb unless it can be said that the evidence thereon is so weak as to constitute no evidence at all. People v. Farrington, 213 Cal. 459, 464, 2 P.2d 814; People v. Erno, 195 Cal. 272, 232 P.2d 710; People v. Newman, 102 Cal.App.2d 302, 227 P.2d 470; People v. Shaheen, 120 Cal.App.2d 629, 261 P.2d 752; People v. Waller, 14 Cal.2d 693, 96 P.2d 344; People v. Braun, 14 Cal.2d 1, 92 P.2d 402; People v. Kittrelle, 102 Cal.App.2d 149, 227 P.2d 38; People v. Mahoney, 146 Cal.App.2d 485, 304 P.2d 73. 'The strength or weakness of the identification, the incompatibility of and discrepancies in the testimony, if there were any, and the uncertainties of witnesses in giving their testimony were matters solely for the observation and consideration of the jurors in the first instance, and for the consideration of the trial court on motion for a new trial.' People v. Farrington, 213 Cal. 459, 463, 2 P.2d 814, 815.

Positive identification free from doubt, often difficult under the best circumstances, is not required (People v. Waller, 14 Cal.2d 693, 96 P.2d 344; People v. Shaheen, 120 Cal.App.2d 629, 261 P.2d 752; People v. Yates, 165 Cal.App.2d 489, 332 P.2d 314); nor is it necessary that all those involved in a robbery identify the participants, for not all persons may have been in a position to adequately see or hear and, further, fear and nervousness often cause faulty memory or confusion. No judgment will be reversed because of a failure of memory of one or more witnesses where there is substantial testimony in support of identity (People v. Newman, 102 Cal.App.2d 302, 227 P.2d 470); the testimony of one witness is sufficient to support a verdict if such testimony is not inherently incredible (People v. Alexander, 92 Cal.App.2d 230, 206 P.2d 657; People v. Newman, supra, 102 Cal.App.2d 302, 227 P.2d 470); and testimony that a defendant resembles the robber (People v....