People v. Nichols
| Decision Date | 15 June 1959 |
| Docket Number | Cr. 3554 |
| Citation | 171 Cal.App.2d 320,340 P.2d 727 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas Cloyd NICHOLS, Defendant and Appellant. |
William D. Piercy, San Francisco, for appellant.
Stanley Mosk, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., San Francisco, for respondent.
Defendant appeals from a judgment of conviction entered on a jury verdict finding him guilty of robbery in the first degree. He also appeals from the order denying his motion for a new trial. He contends that the judgment must be reversed because the prosecution announced to the jury that his associate Winslow had pleaded guilty and introduced into evidence guns not connected with him or the crime.
The circumstances of the robbery are as follows: About 11:45 p. m. on Saturday, January 25, 1958, two men robbed the Cataffo Market at 2301 Van Ness Avenue at the corner of Vallejo Street in San Francisco. The robbers took Mr. Cataffo's wallet and about $90 from the cash register. Mr. Cataffo identified the defendant as the armed robber who had ordered him into the back room and had taken his wallet. Mr. Gubbins, a news vendor, who was standing outside the Cataffo Market, was forced into the store at gunpoint by the two robbers. Mr. Gubbins identified the defendant as one of the men. A Mr. Schade was on his way to the Cataffo Market. He noticed a greenish blue '52 or '53 car with its motor running and the lights out parked on Vallejo Street. He entered the store while the robbery was in progress. One of the robbers who was standing by the cash register with a gun in his hand ordered him to the rear. Mr. Schade identified the defendant as the man behind the cash register wearing a red and black cap.
The following evening, about 11:50 p. m. while on patrol, police officer Tompkins and Inspector Jones saw three persons in a greenish blue DeSoto on the 2900 block of Mission Street. As they passed the car they noticed that it had a rear license plate but no front license plate and that the man at the wheel was a man they had known in the past. Two of the passengers got out of the car. The policemen turned around and asked all three to identify themselves and to explain their reasons for being in that location. The driver of the car was Mr. Winslow; the defendant and a Mr. Sweeden were the two passengers. In the course of the questioning, Winslow attempted to flee but was apprehended.
Officer Tompkins found two loaded guns under the front seat on the passenger side of the car. Winslow stated that the guns were his and that he was trying to sell them. The defendant stated that the car belonged to his wife and that he was Winslow's stepfather and that Winslow was wearing his coat. All three were arrested. Several days later, Winslow's car, a blue 1948 Plymouth, was found parked in the back of 323 Noe Street next door to the defendant's home at 325 Noe Street. Two coats and a black checkered cap were found in this automobile.
By information, T. E. Winslow and the defendant were charged with armed robbery. Both entered pleas of not guilty. Before the trial Winslow pleaded guilty and was sentenced.
Defendant's first contention on appeal relates to the following which occurred on the cross-examination of the defendant:
'
'Mr. Karesh: If Your Honor please, I feel that is a highly prejudicial statement.
'Mr. Reichert: I don't see how it is.
The fact that Winslow was the other participant in the robbery was first brought out by defendant's counsel on the cross-examination of Mr. Gubbins. Then, the witness Schade, in reply to the District Attorney's question, stated that the other robber was Winslow. Defendant's counsel repeated the reference to Winslow several times on cross-examination of Schade. During the course of this cross-examination, defendant's counsel asked that the newspaper pictures of defendant, Winslow and Sweeden be admitted into evidence, and stipulated that the newspaper article accompanying the pictures be put into evidence. After the introduction of the picture, defendant's counsel further questioned the witness about Winslow.
Defendant relies on People v. Bearss, 10 Cal. 68; People v. Collum, 122 Cal. 186, 54 P. 589; and People v. Ford, 89 Cal.App.2d 467, 200 P.2d 867. The two former cases were decided before the enactment of Section 4 1/2 of Article VI of the State Constitution. The nature of the error that requires a reversal under this provision is that there is a miscarriage of justice 'only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' People v. Watson, 46 Cal.2d 818, at page 836, 299 P.2d 243, at page 254.
In People v. Ford, supra, a conviction of grand theft was reversed because of the prosecutor's stating in his argument to the jury that the defendant's acquaintance had been convicted of possessing the stolen property, even though the statement was not assigned as misconduct and the court was not requested to admonish the jury to disregard it. In that case, however, the evidence of defendant's guilt was slight aside from his confession which was given under circumstances indicating that it was involuntary.
In the instant case, three eye-witnesses identified the defendant as one of the participants in the robbery. There was also other evidence of defendant's guilt. The jury here specifically returned for the purpose of rehearing the evidence of the three eye-witnesses, and then deliberated for several hours before returning their verdict. Furthermore, as we pointed out above, the identification of Winslow was first and repeatedly introduced into the record by defendant's counsel. While we agree with the defendant that the courts must exercise a restraining influence on the conduct of overzealous prosecutors, we do not think that in the instant case the remark complained of was an incurable error. Defendant argues that the district...
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...People v. Nelson, 224 A.C.A. 335, 352-353, 36 Cal.Rptr. 385; People v. Beltowski, 71 Cal.App.2d 18, 23, 162 P.2d 59; People v. Nichols, 171 Cal.App.2d 320, 325, 340 P.2d 727.) Insofar as the expended cartridge is concerned, it was not error to admit it in evidence. It was relevant to show t......
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