People v. Mahoney

• Decision Date: 03 December 1956
• Docket Number: Cr. 5642
• Citation: 304 P.2d 73,146 Cal.App.2d 485
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Patrick Lee MAHONEY, Robert Edward Creswell and Stuart Orville Singer, Defendants. Patrick Lee Mahoney and Robert Edward Creswell, Defendants and Appellants.

Page 73

304 P.2d 73

146 Cal.App.2d 485

The PEOPLE of the State of California, Plaintiff and Respondent, v. Patrick Lee MAHONEY, Robert Edward Creswell and Stuart Orville Singer, Defendants Patrick Lee Mahoney and Robert Edward Creswell, Defendants and Appellants.

Cr. 5642.

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

Dec. 3, 1956.

Hearing Denied Jan. 2, 1957.

Morris Lavine, Los Angeles, for appellants.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County, defendants Mahoney and Creswell were charged in Count I with the crime of robbery, committed upon William Heald: Count II charged them with robbery committed upon Robert Perry; and Count III charged robbery committed upon Earl Cutburth. It was further alleged that at the time of the commission of each robbery so charged, the named defendants were armed with a deadly weapon. In Count IV defendants Creswell and Singer were accused of the crime of robbery committed upon Katherine and Clyde Yount, and that at such time they were armed with a deadly weapon. It was further charged that defendant mahoney had been previously convicted of the crime of robbery, a felony. The motion of defendants Mahoney and Creswell to dismiss the information under Penal Code, § 995 was denied, and defendant Singer's motion for a separate trial was granted, so that this appeal concerns only defendants Mahoney and Creswell. The former pleaded not guilty as to Counts I, II, and III, and the latter pleaded not guilty as to Counts I, II, III, and IV. Each denied the allegation that he was armed with a deadly weapon as set forth in the information. Prior to commencement of the trial, defendant Mahoney admitted to prior felony conviction alleged against him.

Trial by jury resulted in verdicts finding defendant Mahoney guilty as charged in Counts, I, II, and III, and defendant Creswell guilty on Counts, I, II, III, and IV. The jury found that each offense was robbery of the first degree, and that both defendants were armed with a deadly weapon at the time of the commission of such offenses. The motion of defendant Mahoney for a new trial was denied and both defendants sentenced to state prison. They prosecute this appeal from the judgment of conviction, while defendant Mahoney also appeals from the order denying his motion for a new trial.

In presenting the factual background surrounding this prosecution no mention is required of Count IV, because at the trial defendant Creswell admitted the offense therein charged and does not seek a reversal of the judgment on that count. Defendant Mahoney was not accused of the crime charged in Count IV.

As to the remaining Counts I, II, and III, the record reflects that on June 21, 1955, Mr. Heald (the victim in Count I) was on duty as a clerk in Thompson's Liquor and Sporting Goods Store at 1182 Wardlow Road, Signal Hill, Los Angeles County. That evening about 10 o'clock, while two customers, Robert Perry (the victim in Count II) and Earl Cutburth (the victim in Count III), were in the store, Mr. Heald walked to the back room of the store where he saw a man 'duck' down behind the cases. Mr. Heald asked him what he was doing there. Another man, who had a woman's stocking over his face and chin, and whom Mr. Heald believed to be the defendant Creswell, as his build and size resembled the man's, stepped around the corner carrying a lever action rifle which was cocked and ready to fire. He said, 'This is a hold-up. Don't make any noise and don't move.' Mr. Heald turned and started to walk away. The man said, 'Don't go any further, that is far enough.' Mr. Heald returned. The man who had 'ducked' behind the cases came out, walked Mr. Heald between two cases, told him to lie face down, and taped his wrists behind his back.

The man with the rifle went to the front of the store and said to the two customers there, 'You two guys in the back room.' They got up and went into the back room where the man with the rifle, who looked like the defendant Creswell to Mr. Cutburth, told them to go into the same aisle that Mr. Heald was in, lie down, and put their hands behind their backs. They did so. The man tied Mr. Cutburth's hands, but did not tie Mr. Perry's.

One of the men took from Mr. Heald his wallet containing a dollar bill; took from Mr. Perry an Englin watch and his wallet containing a dollar, a driver's license, Social Security Card and Navy discharge card; and took from Mr. Cutburth his wrist watch and wallet containing a dollar. After they left, Mr. Perry cut the tape off the wrists of the other two.

Mr. Heald immediately discovered that there were missing from the store about 38 hand guns of different types, money from the cash register, a pair of binoculars, a double barreled Stevens shotgun, and assorted ammunition. An inventory was made by Mr. Thompson, the owner of the store, and a list of the descriptions and serial numbers of the missing articles was made. Included in the list was a Colt Cobra .38 Special No. 25367; a 380 Colt automatic No. 58487; a Smith and Wesson .38 Special No. 178652; a 3222 Smith and Wesson No. 2310; and a Stevens shotgun, 12 gauge.

Patrolman Overton, of the Signal Hill Police Department, arrived at the store in answer to a report of a robbery. There he found a lady's silk stocking and a silk handkerchief behind the counter from which the guns were missing.

About 7:30 a. m. on June 22, 1955, Jose Sanchez Acosta, a uniformed police officer of the City of Tijuana, Mexico, was on duty. He heard four or five shots, and started to go in the direction of the shooting. As he went, he heard more shots. When he got to the scene of the shooting he saw a uniformed policeman and a uniformed traffic officer lying wounded in the street, a man lying in the gutter, and another lying on the sidewalk shooting at other officers who were shooting at him. He saw two guns in the possession of the two men. He also saw a 1946 Pontiac about two meters from the man who was on the sidewalk shooting, and about a meter and a half from the one on the street. A felow officer picked up the guns. Officer Acosta assisted in putting the man who had been lying on the sidewalk into the ambulance which arrived. He was unconscious.

Officer Acosta and his companion took the guns, which the latter had picked up, to the police station. His companion opened the gun which had been taken from the man on the sidewalk, and he said that there were no more shells in it.

Ignacio Perez Lara, a state police officer of Baja California, arrived at the scene of the shooting. He saw the two wounded Mexican officers there, and also two Americans. He took the officers to the hospital in his car. Five or ten minutes after he reached the scene of the shooting, he saw at the hospital, the two men who had been shot, and they were the defendants.

Lieutenant Commander Blanco of the United States Navy, liaison officer for military between Mexico and the United States to investigate matters that affected service personnel, went, on June 22, to the scene of the shooting in Tijuana and saw the defendants there. He saw them put into the ambulance, and followed the ambulance to the hospital.

At the hospital they were taken to a ward, where they were separated by an archway. Defendant Mahoney was injured and bleeding from his arm and hips, and he was unconscious. Defendant Creswell had been shot in the shoulder and was bleeding from several other places. He was lying on a wheeled table. He had not, as far as Commander Blanco knew, had any sedative or anything of that type administered.

About five minutes after defendant Creswell arrived at the hospital, Commander Blanco had a conversation with him. He was in pain, but he answered the commander and the commander could understand what he was saying. His statements were freely and voluntarily made. Commander Blanco called him 'Perry.' He had in his possession an I.D. card which the doctor had given him with 'Robert Perry' on it. Creswell said, 'My name isn't Perry. My name is Creswell.' 'Get me a doctor', he added. Commander Blanco said, 'O.K., just as soon as they get through with the other two patients they'll wheel you into the operating room.' Then he said to Creswell, 'Now I want to know where you got them guns, where you fellows got them guns.' Creswell asked him for a doctor the second time, and the commander said, 'They'll take care of you; just wait a while until they get through, but I want to know where you fellows got them guns.' Defendant Creswell finally told him, 'We held up a sporting goods store in Long Beach.' That was the end of the conversation.

About four hours after the shooting, Lieutenant Lara and a superior officer opened the back of the 1946 Pontiac with a crowbar and found therein a box containing 15 guns. An official list of the guns was made by the superior officer.

Chief of Police Murphy and Sergeant Morrow, of the City of Signal Hill, went to Tijuana on June 22, 1955. On June 23 they entered a room in which the defendants were. Mahoney was lying on a bed parallel to, about four feet from, and slightly higher than the cot on which Creswell lay, with his head in the same direction. Creswell had a bandage on his right shoulder and a blanket over him, and Sergeant Morrow could see a bandage on one of Mahoney's thumbs and a sheet over his body.

Sergeant Gayton of the San Diego Police Department who had accompanied them into the room, introduced them to Creswell. Chief Murphy, who bent down over Creswell, said that he was from Signal Hill and that he wanted to talk to him about the sporting goods store. He asked Creswell, 'Was it just the two of you--just you two on the job, or someone else?' He replied, 'Just us two.' The chief asked, 'Did you carry the gun, or did someone else?' and he replied, 'I carried the gun.' Chief Murphy asked, 'Whose car...