People v. Newman

• Decision Date: 15 February 1951
• Docket Number: Cr. 4460
• Citation: 102 Cal.App.2d 302,227 P.2d 470
• Parties: PEOPLE v. NEWMAN.
• Court: California Court of Appeals Court of Appeals

Page 470

227 P.2d 470

102 Cal.App.2d 302

PEOPLE v. NEWMAN.

Cr. 4460.

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

Feb. 15, 1951.

Rehearing Denied Feb. 26, 1951.

Hearing Denied March 15, 1951.

Bernard C. Brennan, Los Angeles, for appellant.

Fred N. Howser, Atty. Gen., Dan Kaufmann, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

Appellant was convicted on ten counts of robbery with a deadly weapon, and of three prior felony convictions. He demands a reversal of the judgments and the order denying his motion for a new trial on the grounds that they are not supported by the evidence; there is no proof that he was armed with a deadly weapon; he was irreparably prejudiced by his examination as to prior convictions.

The complaining witnesses were engaged at a card game in a club room in the San Pedro area of the City of Los Angeles when three men entered the room, terrorized them with firearms and robbed them of various amounts of money and, in some instances, of their wallets. The robbers said, 'put up your hands--this is a hold-up.' Appellant was the leader of the trio and gave the directions. Holding his gun in his right hand he said, 'I want you fellows to do what you're told and no one will get hurt.' The victims were told to stand by and face the wall and remain so for three minutes after the bandits should leave. When one of the latter had difficulty in opening the cash register, he said, 'Well, we may have to shoot somebody.'

In pursuance of his attempt to establish an alibi, appellant's counsel closely cross-examined each of the witnesses as to the identity of appellant as the person they had seen commit the robberies. While not each of the witnesses was firm in the identification of appellant there was substantial proof thereof. Complainant Mihaljevich though doubtful of the identity testified, 'I'm not sure * * * but he looks like the man who was there.' When complainant Zuvich was asked to identify anyone in the courtroom as one of the robbers he pointed to appellant. Complainant Lucev testified that appellant looked like one of them. Complainant Dragin testified that appellant looked like the robber. Complainant Marincovich testified that appellant looked like the robber who had a blue automatic pistol. Pointing to appellant complainant Vitalich testified, 'I am positive sure that this is the man here' who had the gun. Complainant Carr did not think that appellant was the armed robber but admitted having testified at the preliminary hearing that he thought appellant was the man. Complainant Zurich was positive that appellant was one of the bandits. He was only 20 feet away from him; he looked at him pretty good seven or eight minutes. Also, Zurich identified appellant for the police.

The witnesses Kaloper, Jaconi and Kucich who were present at the robbery declared appellant was one of the armed bandits.

Appellant told the arresting officers that he stayed in the City of Los Angeles in the vicinity of about 30 miles north of the club room where the robbery occurred until about 9:30 p. m., then went to Hollywood which is about eight miles west of the civic center of Los Angeles, then to a barroom at the corner of Figueroa and Pico streets which is about one mile south of the civic center. At no place did he meet anyone he knew.

When appellant took the witness stand he testified that he left home about 9 o'clock, drove his father's car to downtown Los Angeles; entered a theater about 9:30 p. m.; remained until 11:30, stopped at the barroom at Pico and Figueroa and from there drove home where he arrived about 1 a. m. He denied having been in San Pedro or that he committed the robbery. He testified that he saw two picture shows; that he did not remember having told the officers that he remained at home until about 8 or 8:30 p. m. and denied having told them that 'I wouldn't tell you anything if I knew it.'

Such evidence is clearly sufficient to support the verdicts. Proof of identity is a matter for the jury's determination and where there is substantial testimony in support of the identity and where the trial judge has denied a new trial, the judgment will not be reversed because of the failure of the memory of one or more witnesses to the event under consideration. The rule which applies to the finalty of the jury's finding of the corpus delicti applies equally to the identification of the criminal. Lack of positiveness of identity of the accused does not destroy the value of the identification. People v. Ash, 88 Cal.App.2d 819, 825, 199 P.2d 711. When a verdict has substantial proof to support it and the trial judge has denied a retrial, it cannot be set aside for lack of evidence. People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.

Appellant contends that only one witness definitely identified him as the armed bandit who led his companions into the clubroom. Even were this true, when believed by the jury, the testimony of one witness is sufficient to support a verdict for the reason that such testimony is not inherently incredible. People v. Alexander, 92 Cal.App.2d 230, 206 P.2d 657. The uncertainties in the testimony of the several witnesses were matters to be directed to the attention of the jury and the trial court and cannot be urged on appeal. Code Civ.Proc. sec. 1847; People v. Skaggs, 80 Cal.App.2d 83, 97, 181 P.2d 390; People v. DeWitt, 98 Cal.App.2d 709, 220 P.2d 981.

However, we are not forced to depend for an affirmance upon the testimony of one witness. Seven complainants and their associates gave such proof of the crime and of appellant's identity as to justify a finding of his guilt.

Despite his own testimony in support of his alibi, appellant did not...