People v. James
Decision Date | 07 July 1961 |
Docket Number | Cr. 3847 |
Citation | 14 Cal.Rptr. 491,193 Cal.App.2d 595 |
Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Willie M. JAMES, Defendant and Appellant. |
Court | California Court of Appeals Court of Appeals |
William R. Edgar, Oakland, for appellant.
Stanley Mosk, Atty. Gen., Arlo E. Smith and Robert R. Granucci, Deputy Attys.Gen., for respondent.
Willie James was found guilty, by a jury, of robbery in the second degree (Pen.Code, § 211), and he appeals from the judgment of conviction and the order denying his motion for a new trial. Below, he was represented by the public defender; here, he is represented by court appointed counsel. He claims prejudicial error in two respects: (1) that the prosecution improperly offered evidence of another robbery, purportedly to show common scheme and design, which error was not cured by an admonition to the jury, and (2) that evidence as to a prior misdemeanor conviction was improperly received and made the basis for argument by the prosecutor. We conclude that the judgment should be affirmed.
It is not contended that there was insufficient evidence to sustain the verdict. Briefly, that evidence shows that on February 20, 1960, appellant, together with one Matthew (a codefendant) and perhaps a third man, assaulted one Marasco and took from him a wallet containing ten dollars and a coin purse containing five dollars. The details of the assault were recited by Marasco, and in part by one Henson, who saw it in progress and pulled appellant away. Henson also saw appellant and Matthew, a little later, with the wallet, which was in appellant's hand. It was found near the scene of the assault, empty. The purse was not recovered, and neither defendant had the money on him when arrested a short time after the assault. No witness actually saw the removal of the wallet or purse from the person of Marasco, but the latter was positive in his testimony that he had them on his person at the time of the assault and that they were missing immediately afterward. Both Marasco and Henson identified appellant as the one who attacked Marasco from the front, and Matthew as one who simultaneously attacked him from the rear. However, the identification of Matthew was less certain, which probably explains the jury's verdict of not guilty as to him. The evidence is clearly sufficient.
The two matters of which appellant complains are:
First. The prosecution called as a witness one Lee, who testified, in substance, that in August, 1958, appellant assaulted him and took from his person one cigarette and three and one half dollars. When the testimony was offered, appellant's counsel objected and demanded an offer of proof, to which the prosecutor replied that the purpose was to show 'common scheme and design.' The evidence having been received, counsel again objected, and the following occurred:
In chambers the court indicated that it felt that the testimony was improper, but that an admonition would be sufficient. On returning ot the bench, the court did admonish the jury as follows: The People then rested.
Second. Defendant took the stand, and during his cross-examination he was shown the wallet. We set out the colloquy that ensued:
'Q. Did you ever have this wallet in your hands? A. (Shaking head negatively.)
'Q. Isn't it a fact that you took a $5-bill out of this wallet? A. I haven't took $5-bill out of no wallet. I haven't had a wallet in my hand since--it wasn't a wallet; it was Ascot--since 19 and 57.
'Q. Your testimony is that you haven't had a wallet in you hand since 1957? A. That is right.
'Q. You are sure of that? A. I'm positive of it.
'Q. You and I have met in court before, haven't we, Willie, down in Municipal Court? A. That's a sure thing.
'Q. Wasn't it on the 21st of July of 1959? A. Joe Lewis and I?
'Q. July of 1959, the 21st? A. That's right.
'Q. That's the day we met in court, wasn't it? A. That's right, Joe Lewis and I.
'Q. That's right. You and Joe Lewis. A. That's correctly.
'Q. Didn't that arise out of a charge on the 4th of April of 1959 where you were seen by two policemen, Joe Lewis and another fellow, with a wallet in your hands? A. Me and Joe Lewis and Chile was standing in the door drinking a bottle of wine on 7th and Clay, and the officer jumped out of the car and kicked the wallet over to us and told us 'One of you pick it up.' I remember; I remember that I got a pretty good going over behind because I wouldn't pick it up.
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People v. Stinson
...viewed in the light of a record which points convincingly to guilt, is consistently regarded as nonprejudicial. (People v. James, 193 Cal.App.2d 595, 14 Cal.Rptr. 491; People v. Jordan, 188 Cal.App.2d 456, 10 Cal.Rptr. 495; People v. Crisafi, 187 Cal.App.2d 700, 10 Cal.Rptr. 155; People v. ......
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People v. Phillips
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