People v. Robarge

Decision Date23 October 1953
Docket NumberCr. 5467
Citation41 Cal.2d 628,262 P.2d 14
CourtCalifornia Supreme Court
PartiesPEOPLE v. ROBARGE.

Wilfred Wells Robarge, in pro. per., and Albert Garber, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.

GIBSON, Chief Justice.

Defendant, who admitted three prior felony convictions, was found guilty by a jury of robbery in the first degree. He appeals from the judgment and from an order denying his motion for a new trial, contending that the evidence is insufficient to support the verdict; that the district attorney was guilty of prejudicial misconduct; that his constitutional rights were violated by the police when, before trial, a pair of dark glasses was placed over his eyes at the suggestion of a witness who had been asked to identify him; and that the court misconceived its duty in passing on the motion for a new trial.

About three o'clock in the morning of March 5, 1951, the Clock Drive-In restaurant located in the county of Los Angeles was robbed by two men. One of the men entered the office of the restaurant, where the manager and the cook were checking the day's receipts, and announced, 'This is a stick-up.' With a gun in his hand he ordered the manager to open the safe and then directed him and the cook to lie down on the floor. The other robber, who was wearing a hat and dark glasses, met Manus, a dishwasher, as he was leaving the kitchen for the washroom, pointed a gun at him and ordered him to move to a place near the office door. This robber then saw Muldrow, the janitor coming down the hallway and, after some exchange of words, forced him to join Manus. Muldrow and Manus were 'backed' into the office and forced to lie on the floor with the cook and the manager. The robbers took $3,300, tore the telephone from the wall, and turned off the lights.

The cook and the manager, because of their positions on the floor, were unable to see the man who forced Manus and Muldrow to enter the restaurant office. The prosecution claims that this man, who will hereafter be referred to as 'the robber,' was defendant. Six weeks after the robbery Muldrow saw defendant at a police station and was asked by the officers if he could identify him. Muldrow answered that if the man would put some glasses on, he 'could tell more about him.' The police officers placed a fair of dark glasses on defendant, and Muldrow then identified him as the robber. At the trial Muldrow testified that he had a 'good look' at the robber in the hallway, and he was positive that defendant was the same man. Manus testified that defendant's features resembled those of the robber and that defendant appeared to be about the same height, but that he could not state positively that defendant was the robber.

Although defendant did not take the stand, there was testimony on his behalf that he was several miles away from the scene of the crime at the time the robbery was committed. A witness named Buttrey testified that he saw defendant that night at a place called Top's Cafe which was located approximately ten miles from the Clock Drive-In. He said that defendant entered Top's Cafe about a quarter of two, stayed twenty or thirty minutes and left alone. Defendant's former wife testified that at twenty minutes past two he picked her up at the place where she was working near Top's Cafe and drove her to her mother's home. She said that they parked in front of the house and stayed in the car from two-thirty until four o'clock. Her mother testified that she saw them there, recognized defendant, and waited for her daughter to come in.

Defendant contends that the testimony of Muldrow was inherently improbable and that, therefore, there was merely an apparent conflict in the evidence which should not be resolved in favor of the verdict. When questioned at the preliminary hearing, Muldrow demonstrated by a gesture that the robber was a certain height, and according to statements in the record the height indicated was about 4 feet. At the trial Muldrow stated that the robber was about 5 feet 4 inches tall, and when asked to estimate the height of defendant, who of course was in the courtroom, he said, 'Well, I would say he is five feet four.' Defendant relies on the fact that the record shows that his height is about 5 feet 11 inches. Muldrow, however, in referring to the heights of defendant and the robber, used the identical figures of 5 feet 4 inches, and the jury may reasonably have concluded that he was confused by figures and did not know how to estimate the height of a person in feet and inches. Although his testimoney is unclear and inconsistent in some respects, he made an unequivocal identification of defendant as the robber, and his testimony was corroborated to some extent by that of Manus, who testified that defendant was about the same height as the robber, had similar features and looked like him. We cannot say as a matter of law that the evidence is insufficient to support the judgment.

The asserted misconduct of the district attorney occurred during the examination of the witness Buttrey and consisted of asking questions the purpose of which, according to defendant, was to implant in the minds of the jurors the idea that defendant's brother was the other participant in the crime. As we have seen, Buttrey testified that he saw defendant at Top's Cafe on the night the robbery was committed. On cross-examination the district attorney asked him who was with defendant at the cafe. Buttrey answered that the defendant and his brother, Jimmy, came together and that Jimmy remained at the cafe after defendant left. The district attorney also questioned the witness as follows:

'Q. When did you first hear that the Clock Cafe down on Atlantic Boulevard by Florence had been been stuck up? A. At the time that the two boys were picked up; shortly after that, when they were missing.

'Q. That was long about the latter part of April? A. That's right.

'Q. And you didn't hear about this stick up or hold up at the Clock Cafe until after you heard that the boys had been arrested. A. That's right.'

No objection was made to any of the questions, and no motion was made to strike any of the answers.

The prosecution was entitled to explore defendant's alibi and to question the witness with respect to the persons who were in the cafe at the time he said defendant was there. There is nothing in the record to indicate that, when the district attorney asked the witness concerning the time he first learned of the robbery, the answer would bring before the jury the fact that defendant's brother had been arrested with him. Under the circumstances, we find no misconduct on the part of the district attorney.

Defendant further contends that the action of the police in placing dark glasses on him at the time he was identified by Muldrow at the police station was in violation of his constitutional rights. In this connection it may be noted in passing that defendant made no objection to Muldrow's testimony upon the ground that his identification might be based in part upon what occurred at the police station. Defendant relies solely on Rochin v. California, 1952, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, in support of his contention that he was deprived of his constitutional rights. That case was extensively reviewed in People v. Haeussler, 41 Cal.2d 252, at page 258, 260 P.2d 8, at page 12, where this court stated: 'In brief the Rochin case holds that brutal or shocking force exerted to acquire evidence renders void a conviction based wholly or in part upon the use of such evidence.' In the present case there is no evidence whatsoever of brutality or shocking conduct. In fact, there is nothing to show that force was used when the glasses were placed upon defendant, and, for all that appears, he may have consented to what was done.

The final contention of defendant is that the trial court misinterpreted its duty and erroneously denied his motion for a new trial solely because it felt bound by the jury's decision on the evidence. While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a...

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