People v. Neely
| Decision Date | 02 September 1958 |
| Docket Number | Cr. 6016 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Frederick NEELY and Norman W. Golland, Defendants, Norman W. Golland, Appellant. |
Ernest L. Graves, Wilmington, Wm. J. Clark, Los Angeles, of counsel, for appellant.
Edmund G. Brown, Atty. Gen., Joe J. Yasaki, Deputy Atty. Gen., for respondent.
This is an appeal from the judgments and sentences rendered after verdicts of guilty by a jury, wherein the appellant was charged with and convicted of robbery and murder.
In an information filed in Los Angeles county, the co-defendant Neely and appellant Norman W. Golland, were charged in count I with robbery in that they did about December 28, 1956, while armed with a deadly weapon, by force and fear, take $14 from the person and immediate presence of Vera Kaloostian. In count II Neely and appellant were charged with murdering Joseph Walter Leopold.
It was alleged in the information that Neely had previously been convicted of forgery in about 1956, and had served a term in the federal prison therefor, and had been convicted of robbery in Los Angeles county in about 1952, and had served a term in the state prison therefor. It was alleged that Golland had previously been convicted of forgery of a fictitious name in about 1951, and robbery in about 1952, and had served separate terms in the state prison for each of said offenses. On February 20, 1957, Neely denied the prior convictions and entered pleas of not guilty and not guilty by reason of insanity, and three doctors were appointed pursuant to the provisions of section 1027, Penal Code, to examine Neely and report to the court. On February 20, 1957, appellant entered a plea of not guilty to the charges and stood mute as to the prior convictions. The court thereupon, for the record, entered up a denial of the prior convictions. The appellant made a motion for a separate trial and such motion was denied.
On May 8, 1957, the case started to trial and Neely withdrew his plea of not guilty and not guilty by reason of insanity as to count II and entered a plea of guilty of murder in the first degree and admitted the two prior convictions. It was stipulated that the court might read and consider the reports of the doctors filed in the case in considering judgment. The time of sentencing Neely was continued to May 22, 1957.
Appellant made a motion to dismiss count II as to him, and such motion was denied. He then made a motion to compel the prosecution to elect as to which count it would proceed upon, and that motion was also denied. The appellant then admitted the prior convictions.
The jury found the appellant guilty of robbery in the first degree, and also found that he was armed at the time of the commission of the offense. The jury also found appellant guilty of murder in the first degree and recommended punishment by imprisonment in the state prison for life. A motion for a new trial was made and denied, and appellant was sentenced. The appeal to be considered is from the judgment of conviction and from the order denying appellant's motion for a new trial.
A resume of the testimony is as follows: Neely resided in Bakersfield and was employed as a roustabout by an oil company. At one time he owned a 1951 model Ford automobile, but he was involved in an accident with that car about December 19, 1956, in which accident he had his jaw injured and was hospitalized thereafter for several days. After he got out of the hospital, but before December 27, 1956, he borrowed, on two or three occasions, for not more than an hour or so on each occasion, a 1951 model Plymouth automobile (California license number FER 866) from a friend, Mrs. Frances Leard. About 1:30 o'clock p. m., Thursday, December 27, he borrowed the Plymouth car from Mrs. Leard, stating that he was going to Los Angeles. In the late afternoon of December 27, 1956, Neely registered at the Grant Hotel on Sunset Boulevard in Los Angeles, under the name of Ron Allard, and as being from Minneapolis, Minnesota. About 6:15 o'clock of that same day he left the hotel and about an hour later returned with the appellant. When they entered the hotel Neely went to a telephone which was attached to the wall and looked at the classified section of the telephone book. During this time the appellant was close by the hotel clerk, who testified positively that the appellant was with Neely at that time. Neely and the appellant then went to Neely's room. The hotel clerk worked on his regular shift until 5:00 o'clock a. m. of Friday, December 28th, 1956, but he did not see either Neely or the appellant leave the hotel during the night or early morning.
About 7:15 o'clock p. m., December 28, 1956, Mrs. Vera Kaloostian was working at a check stand in a Safeway grocery store, located at 1921 North Wilcox, Los Angeles. As she was sacking some grocery items for Joseph W. Leopold she noticed a man, wearing a hat and mask and dressed in army khaki clothes and holding a gun, enter the store. The mask was of black silk material and it covered the face of the man wearing it from the eyes down. The man walked up to Mrs. Kaloostian and said, 'This is a holdup; open the register;' whereupon she responded by unlocking the register. The drawer opened and the man reached into it and took out 'a few bills.'
The robber then started to leave and as he did so Mr. Leopold picked up a can and threw it at him. The checker then heard a shot and a 'whiz-like, or something' right beside her ear. She called for help from the management.
There was uncontradicted evidence that Leopold was struck in the head by a bullet and died from the wound he so received. An officer stated that he arrived at the store about 7:15 o'clock p. m. and saw a man who was later identified as Leopold, lying in the aisle of one of the check stands.
Shortly after 7:00 o'clock p. m. on December 28, 1956, Miss Janet Parker was riding in a car driven by her brother in a southerly direction on Wilcox Avenue, in the block where the Safeway store heretofore mentioned is located. As they passed the store she saw a masked man, holding a shining object in his hand, run from the store into the parking lot which immediately adjoins the store to the south. The running, masked man ran in front of a car which was parked headed out toward the street, and entered it from the passenger side. The car had started moving toward the exit to the street before the masked man had gotten into it, and then 'it moved out rather fast.' That car then turned from the parking lot to its right onto Wilcox Avenue, and was directly behind and going in the same direction as the car in which Miss Parker was then riding. At the first intersection, which was but a short distance from the parking lot, both cars stopped. Miss Parker had looked over her shoulder to ascertain the front license number on the car which the masked man had entered, and when the cars were stopped she was able to see the first three letters on the front license plate. The car in which Miss Parker was riding continued southward on Wilcox Avenue for one block and then turned right in a westerly direction. The street (Yucca) which the Parker car then traveled, within a short distance, curves in an 'S-turn,' and the Parker car turned in a southerly direction.
At the first intersection (North Wilcox and Franklin) from the parking lot the robber's car turned to its right, or westerly (on Franklin), and apparently, at the first intersection thereafter (Grace and Franklin) turned to its left and went southward, and finally into the 'S-turn' heretofore mentioned. At that point Miss Parker saw the robber car coming from the front and to her right. The two cars came close to each other and the robber car was compelled to stop for the Parker car to avoid a collision. Miss Parker then saw the front license plate and memorized the letters and numbers which were FER 866. She also saw that there was someone in the passenger side of the robber car 'but it was just a shadow then' and she could not see anyone on the driver's side.
At about 7:40 O'clock p. m., Friday, December 28, 1956, Rex Berridge, a truck driver who had known appellant for about seven years, saw the appellant, who appeared to be waiting for a bus at the corner of Sunset and Aprkman. Berridge had watched the Friday-night fight on a television. Such fight, according to a representative of the broadcasting company, ended at 7:39.20 p.m. Golland asked Berridge if he, Golland, could buy him, Berridge, a drink and Berridge refused. A bus drove up headed eastward toward Los Angeles, and appellant got on it.
There was also testimony to the effect that 'just somewhere after seven o'clock' the appellant was seen walking on the corner of Sunset and Le Moyne by some of his friends, namely James Godkin, Jr., Gus Rantes, Bob Lively and Milt Moore. The appellant got into a car that Rantes was driving and thereafter proceeded along various streets for seven or eight miles and then that automobile was stopped near the intersection of Sunset and Echo Park, close to the Sunset Bar, where appellant got out of the car and started toward the Sunset Bar. The appellant entered the Sunset Bar, sometime between 9:00 o'clock p. m. and 10:00 o'clock p. m., according to the testimony of the bartender who stated that he 'watched the clock' in the establishment, which clock was kept about twenty minutes fast.
The Leard Plymouth automobile, license number FER 866, was returned to Mrs. Leard in Bakersfield at about 11:00 o'clock p. m., Friday, December 28, 1956.
Neely was arrested about 12:15 o'clock a. m., December 29, 1956, at the home of Mrs. Leard in Bakersfield.
At about 2:15 a. m., December 29, 1956, the appellant was arrested, at the Sunset Bar, for suspicion of...
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