People v. Kearns

• Decision Date: 13 March 1957
• Docket Number: Cr. 3251
• Citation: 149 Cal.App.2d 113,307 P.2d 1015
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent. v. James KEARNS, Defendant and Appellant.

Page 1015

307 P.2d 1015

149 Cal.App.2d 113

The PEOPLE of the State of California, Plaintiff and Respondent. v. James KEARNS, Defendant and Appellant.

Cr. 3251.

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

March 13, 1957.

Hearing Denied May 8, 1957.

Nathan Cohn, Lawrence Shostak, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., of California, Clarence A. Linn, Asst. Atty. Gen., William M. Bennett, Deputy Atty. Gen., for respondent.

COMSTOCK, Justice pro tem.

Defendant was charged in an information with robbery in two counts, committed by means of force and by putting in fear, while armed with a deadly weapon, a gun. The information also alleged that the defendant had previously been convicted of two felonies, to wit, assault, with intent to commit robbery, and robbery. Defendant pleaded not guilty to each charge of robbery and admitted having suffered the two prior convictions. Trial was had before a jury which returned verdicts of guilty as to each count and found each offense to be robbery in the first degree. It also found each charge of being armed with a deadly weapon to be true. A motion by defendant for a new trial was denied. Defendant was sentenced to be punished by imprisonment in the State Prison for the term prescribed by law, as to each count, the sentences to run concurrently. This appeal by defendant is from the judgment and sentence of conviction and from the order denying his motion for a new trial.

The following points are urged by the defendant as grounds for reversal: (I) that the trial judge erred to the prejudice of the defendant by admitting evidence regarding possession of guns by the defendant prior to the commission of the crimes alleged; (II) that prejudicial error was committed by the court's admitting evidence of prior robberies by the defendant; (III) that the Deputy District Attorney was guilty of misconduct to the prejudice of the defendant by bringing to the attention of the jury, in argument and in the questioning of witnesses, a gun in a package which had been in the possession of the Police Department of San Francisco continuously from a date prior to the commission of the crimes charged to a date subsequent thereto and could not have been the weapon used in the commission of the crimes; and, further, by having, in company of a police officer, visited a defense witness and frightened him into being hesitant and evasive in his testimony; (IV) that the trial judge erred and prejudiced the defendant by permitting cross-examination of the defendant beyond the scope of the direct examination; and (V) that prejudicial error occurred when the trial judge denied the defendant a new trial based upon newly discovered evidence. We have reashed the conclusion that none of these grounds of appeal has merit.

With respect to count one, the essential facts are as follows: Shortly after midnight of October 13, 1955, John M. Johnson who, with a partner, owned and operated a grocery store at 667 Bush Street in the City and County of San Francisco, observed an automobile stop in front of the store. He noticed defendant sitting on the right hand side of the car. Defendant got out of the car, entered the store, shopped around and brought a few items to the counter. He was wearing a long, faded yellow trench coat which was all buttoned up at the neck. Johnson was suspicious because of the way the coat, which looked like a raincoat, was so completely buttoned up 'on such a nice evening' so he 'kept taking a good look at him.' He particularly noticed defendant's eyes; they seemed to him to be different from any he had ever seen. Defendant was bareheaded and his hair was mussed and unruly. After shopping around, defendant came to the check stand, ordered two cartons of cigarettes, said he had forgotten something and went back for a quart of milk. Johnson rang up the sale on the cash register and put defendant's money on the register, whereupon, defendant reached through the pocket of his coat and stuck what appeared to Johnson to be a blue steel revolver, about a .38 caliber, out through the front of his coat, saying, 'This is it; this is a stick up. Put the money in a bag.' The contents of the cash register amounting to something in excess of $300 were put in a bag by Johnson and handed to the defendant who ordered Johnson to 'keep his nose pointing down at the cash register just like he was and he would be okay.' Defendant left; Johnson heard a car pull away. Johnson identified a photograph of defendant made on September 20, 1955, and also identified him in a police line-up five or six days after the robbery and in open court at the trial. He was positive in his identification.

The following facts appear as to the robbery charged in the second count: On October 17, 1955, at about 7:45 p.m., defendant entered the grocery store of Albert Citti at 2260 Van Ness Avenue in San Francisco. Citti described defendant's dress as 'a tan coat that could have been used as a raincoat, that was buttoned up to his neck.' He was bareheaded and had 'unruly hair; wasn't combed back slick or anything at the time.' Defendant asked Citti for a fifth of gin and was told that he had only pints. Defendant said that would do. Citti placed a pint bottle of gin on the counter near the cash register and defendant pulled out a gun, menacing Citti with it, and ordered, 'Open it up and give me the money.' Citti gave him the money. Defendant ordered him to, 'Put it in the paper bag.' Citti obeyed. Defendant picked up the bag and the bottle, told Citti, 'Turn your eyes toward the floor' and departed. The amount of money taken was about $110. Citti testified that he was not at all familiar with guns, but that the weapon used looked to him like a Luger, 'sort of a dark gun, brown in color.' He said he would not really know whether it was an automatic type gun but defendant did 'clip it back' and said, 'Hurry it up', so Citti 'hurried up.' Citti identified defendant from a series of photographs shown him by the police and also identified him later in a police line-up and in court. He had no doubt whatever of the identity of defendant.

Appellant says the court erred in permitting reference by the Deputy District Attorney to a Smith and Wesson .38 caliber revolver taken from defendant by the police on September 20, 1955, and conceded to have been in their possession continuously from that date through the time of trial. Of course, this could not have been one of the weapons used in the robberies. Defendant testified he had no gun on either October 13th or 17th. It therefore was competent for the prosecution to attempt to show by cross-examination or other competent testimony that he had had possession of a weapon similar to either of the guns used in the robberies at a previous date. It is true that both the Deputy District Attorney and the attorney for defendant knew of the gun in the possession of the police. If this had been the only gun of which the prosecution had any knowledge or which it expected to show defendant had previous to the robberies, its good faith in bringing up the subject would have been subject to question. But the gun in the possession of the police was a snubnosed or short-barreled Smith and Wesson, described by the defendant as 'a stub-nosed Colt and Wesson, I believe; I'm not sure. It was a stub-nosed revolver * * * Well, the barrel is short, yes.' The prosecution produced a witness, Patricia Adler, a friend of defendant, who testified to the defendant's having shown her a revolver about eight or none inches long during the month of September, 1955. It was thus necessary, both in fairness to the defendant and in the interest of accuracy, to distinguish the short-barreled gun from the gun which the prosecution sought to prove was similar to one of those used in the robberies. This the Deputy District Attorney did in an eminently fair manner. He first asked the defendant if he had in his possession a .38, possibly a .45 caliber revolver prior to the dates of the robberies. Following argument out of the presence of the jury on defendant's objection to this question, the court permitted the question, but limited the examination to an attempt to show defendant's possession of a gun similar to one of those testified to in the case. As a proper precaution against the jury being misled or prejudiced, the court gave them the following instruction: 'Well, now, ladies and gentlemen, I'm going to permit the District Attorney to ask this series of questions on the theory that--the reason I'm explaining it to you is that it will be up to you to decide. I take it that the District Attorney is going to attempt to prove that this man had in his possession at sometime a gun that was similar to one of the guns that has been testified to here, and I want you to listen to the testimony with the understanding that this has nothing to do with this defendant's general character, or anything like that, and it will be up to you to decide from the evidence whether, first, he did have a gun in his possession prior, and, secondly, if it was in any way similar to either of the two guns that were testified that were used in the two robberies.

Now, I'm permitting it on that very narrow ground, and for a very narrow reason, so I want you to keep those things in mind as you listen, and under our methods of procedure, it is necessary for the People, who have to ask him the questions, and presumably will produce their own evidence in an attempt to prove he did have such a gun, but they must ask him first to lay a foundation, as we call it, so, it is a difficult situation, and I want you to approach it thoughtfully and with this narrow issue in mind.' The question was then read back by the reporter and defendant answered, 'I had a .38.' Asked if he had more than one .38, he answered, 'No.' He was then asked to describe the .38 that he had and did so as above set out. The record then shows the...