People v. Liner, Cr. 1402

• Decision Date: 05 March 1959
• Docket Number: Cr. 1402
• Citation: 168 Cal.App.2d 411,335 P.2d 964
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Smith LINER, Jr., et al., Defendants. Jack Wayne Watterson, Appellant.

Page 964

335 P.2d 964

168 Cal.App.2d 411

PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Smith LINER, Jr., et al., Defendants Jack Wayne Watterson, Appellant.

Cr. 1402.

District Court of Appeal, Fourth District, California.

March 5, 1959.

Marvin J. Mizeur, San Diego, for appellant.

Stanley Mosk, Atty. Gen., and John M. Huntington, Deputy Atty. Gen., for respondent.

MUSSELL, Justice.

Appellant Jack Wayne Watterson and his codefendants Paul Liner and Herman McClain were charged with the crime of robbery (Pen.Code, sec. 211) in that on or about December 28, 1957, they did wilfully, and by means of force and fear and against the will of one George L. Katz, take a wrist watch and $6 in cash from his person, possession and immediate presence.

A jury trial was had resulting in a verdict finding appellant guilty of the crime of robbery and fixing the degree as robbery in the first degree. Paul Liner was found guilty of robbery in the first degree and Herman McClain was found not guilty. A motion for new trial was denied and appellant was sentenced to imprisonment in the state prison. He appeals from the judgment.

George L. Katz was not present at the trial and his testimony taken at the preliminary hearing was introduced in evidence and read to the jury. It appears therefrom that on December 28, 1957, at about 7:30 p. m., Katz was hitchhiking from San Diego to Los Angeles when a black Ford car stopped to pick him up. McClain was driving the car, Watterson was in the back seat and appellant sat in the front seat between McClain and Liner. They stopped at a filling station in San Diego and then proceeded toward Los Angeles. About 20 minutes later Katz felt a 'bang' on his head and 'saw black and white' and his ears 'cracked'. He 'figured it came from the back because both the others had their hands in front.' He was hit four or five times and the blows were applied on the back of his head and 'it felt like a blunt object'. Katz started begging his companions to stop, stating that he had only about $6; that he had a wife and three children and asked them not to hit him. The appellant then said, 'shut up or I will hit you some more.' Liner took Katz' watch, a $5 bill and a $1 bill. The car was then stopped near a ditch and appellant said, 'I want you to get out and lie on your belly in the ditch and if you don't I will give you a beating you will never forget.' Katz complied with this order and appellant and his companions then drove away.

Katz was taken to a hospital for treatment and a wound in his head was sutured. A doctor testified that from the photographs shown to him he could not say with any degree of certainty whether the injury to Katz' head was caused by a blunt object or by a severe bump on a hard surface.

Appellant and Liner did not testify. McClain testified that he was driving the car when appellant told him to pick up Katz; that they drove north on highway 101; that Katz sat in the middle in the front seat with Liner on his right and appellant was in the back; that somebody hit Katz and that on appellant's order, he, McClain, stopped by the side of the road; that Liner put his hand in Katz' pocket and then Katz pulled out his wallet and gave it to Liner; that he, McClain, thought that appellant told Katz to get out and lie in the ditch and after Katz got out and was lying in the ditch, appellant told him (McClain) to drive off; that they then drove to Escondido, where they were arrested.

Appellant contends that the evidence is insufficient to sustain a conviction of robbery in the first degree. He does not question the sufficiency of the evidence to sustain a conviction of robbery but claims that the evidence is insufficient to show that appellant was armed with a deadly or dangerous weapon at the time of the commission of the offense. Pen.Code, sec. 211a.

In People v. O'Neal, 2 Cal.App.2d 551, 558, 38 P.2d 430, 433, it is said:

'A dangerous or deadly weapon was been frequently described in our authorities as any weapon or instrument which, from the manner that it is used or attempted to be used, is likely to produce death or cause great bodily injury.'

Under the circumstances of the instant case the question of whether the appellant was armed with a dangerous or deadly weapon within the meaning of section 211a of the Penal Code was one of fact for the jury. People v. McKinney, 111 Cal.App.2d 690, 693, 245 P.2d 24. The character of the weapon used may be shown by circumstantial evidence. In People v. Lopez, 118 Cal.App.2d 235, 237, 257 P.2d 670, 671, the court said:

'The evidence is also sufficient to sustain the jury's implied finding that defendant was armed with a dangerous or deadly weapon when he committed the offense, hence was guilty of robbery in the first degree. Penal Code, sec. 211a. Morgan was attacked from behind, consequently he could not see the instrument with which he was hit. However, the character of the weapon used by a defendant may be shown by circumstantial evidence. The testimony of the victim, that he was hit by 'some hard object, rendered semi-conscious, and remained in that condition for a period of some seven minutes, justifies an inference that a dangerous weapon was used. People v. Sampson, 99 Cal.App.2d 306, 278 P. 492.'

In the instant case the jury could infer that a dangerous or deadly weapon was used from the testimony of the victim, George Katz, and the testimony of the doctor, who stated that the injury to the victim's head appeared to be a laceration one and one-half to two inches in length, with serrated or jagged edges, and that the appearance of a jagged wound in the back of the scalp means a blunt object of some sort was used. The qualification of the doctor to testify as an expert was within the discretion of the trial court. It is not restricted by any specified limitations in determining such qualifications and the exercise of its...