People v. Paul

• Decision Date: 16 January 1957
• Docket Number: Cr. 5728
• Citation: 147 Cal.App.2d 609,305 P.2d 996
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Rushton PAUL, Defendant and Appellant.

Page 996

305 P.2d 996

147 Cal.App.2d 609

The PEOPLE of the State of California, Plaintiff and Respondent, v. Rushton PAUL, Defendant and Appellant.

Cr. 5728.

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

Jan. 16, 1957.

Hearing Denied March 13, 1957.

Gerald J. Levie and Sam Bubrick, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Bonnie Lee Hansen, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County, defendant was accused of escaping from the lawful custody of a Deputy Sheriff of Los Angeles County while in custody under a felony charge, to-wit, Robbery, Penal Code, sec. 4532(b).

Following entry of a plea o not guilty the cause proceeded to trial before a jury resulting in a verdict finding the accused guilty as charged. His motion for a new trial was denied and he was granted conditional probation.

From the judgment of conviction and from the order denying his motion for a new trial, defendant prosecutes this appeal.

With regard to the factual background surrounding this prosecution the record reflects that on the morning of January 3, 1956, between 1 and 1:30 o'clock, Mrs. Betty Lame was working alone as night clerk at a liquor store in Los Angeles County, when defendant entered the store. He had his right hand in his pocket when he entered the door. As he walked in, Mrs. Lame greeted him, but there was no answer; he merely 'gave her an angry look'. The defendant walked to where the refrigerator delicatessen case begins. Mrs. Lame spoke again, and the defendant just continued walking up the customer's part of the store in an esterly direction toward the beer case. Mrs. Lame then asked if she could help him. Less than one minute elapsed before he reached the easterly end of the refrigerator case. The defendant turned into the aisleway between the delicatessen case and the beer case. As the walked out of Mrs. Lame's line of vision, where she was stationed behind the counter, she continued to observe him in the mirror.

When defendant turned into the aisle leading to the private part of the store (the owner's living quarters), Mrs. Lame said, 'You can't go back there; that isn't customer area.' Defendant made a partial turn and looked at her as though, according to her testimony, to say, 'Oh, I can't?' He then continued to walk to the back of the store.

Mrs. Lame became frightened because '* * * his expressions and his actions were not that of a customer * * * He had not offered to buy anything, and he was going some place where he was told not to go.' She jumped over the counter, and went out the door.

Then she looked through the window of the store, but did not see the defendant. She then stopped two boys in an automobile and asked them to call the police. Mr. Fowler, the driver of a second car, was also stopped. Mrs. Lame asked him to call the police, and told him a man had entered the store, gone back to the living quarters, and was going to hold the place up.

Mr. Fowler called the police from a filling station. Deputies Vaughn and Swenson, who were on patrol, drove to the station where Mr. Fowler told them that there was a man holding up a woman at 6912 South Central, in the liquor store, or words to that effect. Mr. Fowler and the police drove to the store.

The two boys in the first car returned about three to five minutes after Mrs. Lame had talked with Mr. Fowler. They remained with Mrs. Lame until the police arrived.

During the fifteen minute interval between the time she vaulted the counter and the police arrived, she had looked in the window serveral times, but did not see the defendant. About three to five minutes before the police arrived, while she was standing in front of the store with the two boys, she saw the defendant in back of the beer case, and facing toward the aisle leading to the living area, where the owner frequently kept large sums of money. The defendant turned, saw Mrs. Lame outside, and then came out of the store. He told Mrs. Lame and the two boys, that he was looking for a preacher.

When the police arrived, Deputy Sheriff Swenson covered the defendant and the two boys, who were in front of the store, with a shotgun, and told them to put their hands up. He then 'shook them down'. The defendant was carrying no weapons.

Mrs. Lame told the police, immediately on arrival, that the defendant had come in the store, wouldn't speak, and went back into the living area where he was not supposed to go, after the had been told it was not customer area, and that he remained there approximately fifteen minutes. She also told them she thought he was going to hold up the store; and that valuables were kept in the living area in back of the store.

Mr. Fowler testified that when the defendant was told to put his hands up, he was informed that he was under arrest. The officers testified, however, that there was no arrest made at that time.

While the defendant was kept under surveillance outside the store, Deputy Swenson and Mrs. Lame went inside. There, Mrs. Lame told him that the defendant had come into the store, did not answer when she spoke to him, went into the back after she told him not to, and stayed in the store approximately fifteen minutes. Mrs. Lame went behind the counter, demonstrated her position, and showed Deputy Swenson how the defendant acted. She told him that when the defendant walked in the front door he had a 'fierce' look on his face; that she had spoken to him and he had said nothing, but continued in a deliberate manner toward the rear of the store, and as he started behind the counter, she told him it was not the place for customers. Mrs. Lame also told Deputy Swenson that defendant had been in the store quite a long time and that she thought his purpose in going behind the counter was to determine if anyone else was in the store. Mrs. Lame was not sure whether anything was disturbed or missing, because the defendant had been out of her sight.

Deputy Swenson then came out of the store and told Deputy Vaughn what Mrs Lame has said, and that the defendant 'looked like a fairly good robbery suspect'. Deputy Swenson asked the defendant a number of routine questions in straight English, but the answers were incoherent. So he used slang, and said to the defendant, 'There is no use shucking and jiving. We knew what has been happening around here. Let's see what's shaking,' and other similar statements. The defendant placed his hands down, looked through the 'close of his eyelids', rolled his head back and said, 'Let's dance.' Deputy Swenson formed the opinion that defendant was under the influence of narcotics.

Deputy Swenson and Mrs. Lame went back inside the store, after which Deputy Vaughn questioned the defendant and also formed the opinion that the latter was under the influence of narcotics. Deputy Vaughn asked the defendant his name, and where he lived, but received no answer. When the defendant was asked what he was doing there, he replied, 'I was looking for a preacher in a C-47 Cadillac.' Deputy Vaughn requested the defendant to remove everything from his pockets, and found a Los Angeles County Jail property envelope stamped with an 'N', which is the type given to narcotics suspects at the jail. The defendant stated that he had been arrested approximately one month prior for narcotics, and was a 'poor sick hyp.' He said that he had taken a 'shot' that afternoon, and that he was using 'that real good brown stuff.' The defendant also said that he had entered the store 'to do some harm.'

After defendant had made these statements, he was informed that he was under arrest for suspicion of robbery and narcotics.

After defendant was informed that he was under arrest, Deputy Tittle attempted to handcuff him. The defendant grabbed the deputy's wrist, and there was a scuffle during which the former and Deputy Tittle proceeded in a northerly direction around the corner from the store to a parking lot. The defendant broke loose and ran between two rows of parked cars. Deputies Vaughn and Tittle ran after him yelling for him to halt, or they would shoot. Shots were fired by both deputies and the defendant was found wounded under a parked automobile. On the third or fourth day of January, Sergeant Aure talked to the defendant in the hospital, and asked him, 'What were you doing in back of the liquor store?', to which he repled that 'he was looking at to which he replied that 'he was looking at

Sworn as a witness in his own behalf, defendant testified that on the occasion in question he entered the liquor store to make a purchase. That as he walked in, he observed the clerk who was sitting behind the counter. He wandered around the store to decide what to buy, but did not at any time walk to the west side of the beer refrigerator. That while he was in the store he looked through the glass refrigerator and saw a parrot.

During the time he was in the store, nothing was said to him.

That after be had been inside the store about two minutes, he turned around to ask the clerk about the cost of a couple of items, and found that he was alone. He noticed that the clerk and two men were standing outside the store looking in at him through the window. He immediately went outside to get a few answers as to the price of certain items. When he went outside, he did not speak to the three people outside, not did anyone speak to him.

That there were a couple of police patrol cars present, and an officer ordered him to back up against the glass wall and put his hands over his head. One officer asked him his name.

That he took everything out of his pockets, and one of the officers looked over the items. The envelope found in his pocket was issued to him while he was in jail for a traffic violation. The defendant further testified that he had never been arrested for suspicion of violation of the narcotics laws. He denied telling anyone that he had been...