People v. Miller

• Decision Date: 03 August 1955
• Docket Number: Cr. 3055
• Citation: 286 P.2d 415,134 Cal.App.2d 792
• Parties: The PEOPLE of the State California, Plaintiff and Respondent, v. Harold MILLER, Defendant and Appellant.
• Court: California Court of Appeals

Page 415

286 P.2d 415

134 Cal.App.2d 792

The PEOPLE of the State California, Plaintiff and Respondent, v.Harold MILLER, Defendant and Appellant.

Cr. 3055.

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

Aug. 3, 1955.

Lloyd S. MacDonald, Oakland, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.

FRED B. WOOD, Justice.

Convicted on three counts charging robbery, violation of section 211, Penal Code, defendant appeals from the judgment and from the order denying his motion for a new trial.

He claims the evidence is insufficient to identify him as the person who committed the offense charged in Count One, robbery during the evening of August 9, 1953, at a Lucky Store situate at 2601 Telegraph Avenue, Oakland.A person who happened to be sitting in a car outside the store testified that he saw two men get out of a green 1950 Ford that had a dent in its right front door and go into the store.A few minutes later he saw them get back into the car and drive away.He memorized the license number on that car as it went past him.By means of that license number and the above description he later identified the car, and upon it the police found a palm print which was identified as the defendant's.Defendant argues that the lighting was insufficient to enable the witness to make the identification but that does not appear as a matter of law.The witness said that although it was dark the store lights were on and that he did see.It was a question of fact for determination by the jury.There were additional circumstances which also tended reasonably to connect defendant with the commission of the offense.There is not a sufficient basis for a reviewing court to disturb the verdict on the first count.

Count Three charged robbery, October 3, 1953, of a Safeway Store at 40th and Telegraph in Oakland.Defendant was identified by two clerks who worked at that store and were present at the time of the robbery.Defendant questions the credibility of their testimony.One clerk said that the shorter of the two men who held up the store was about five feet seven inches tall and wore a plaid suit.Asked on cross-examination if defendant is that man, the witness said he'looks like him,' and 'I believe so, yes.'Again asked as to the height, he said the man was about five eight or five nine; did not believe he could have been over five feet and ten or eleven inches.The other clerk indentified defendant as the shorter of the two men and said he was about five feet ten inches and he wore an Eisenhower-type jacket--'I believe brown check,' a brown and white check.Here, says the defendant, are discrepancies in the testimony of these two witnesses so great as to render them unworthy of belief.We do not so view it, as a matter of law.Estimates of a man's height are but approximate and the same jacket might honestly be described as a plaid by one man and a check by another.Also, when a witness says 'I believe' or 'I think so'he is not necessarily guessing.Weingetz v. Cheverton, 102 Cal.App.2d 67, 72-74, 226 P.2d 742.It is evidence in the case to be weighed by the trier of the facts, not by a reviewing court.

The clerk who positively identified the defendant in court was shown two photos which he recognized as pictures of a police line-up which he saw at the city hall about a week or a week and a half after the robbery.Asked upon cross-examination where defendant was in the line-up he said 'I believe he was the second one,' not on the end.One picture showed defendant at the extreme left of the line; the other, next to the man at the end.It is appearent from the photographs that they were taken from different positions in the room.Also they were taken at different times because the relative positions of...