People v. Shaheen

• Decision Date: 15 October 1953
• Docket Number: Cr. N
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. SHAHEEN. o. 788.

Page 752

261 P.2d 752

120 Cal.App.2d 629

PEOPLE v. SHAHEEN.

Cr. No. 788.

District Court of Appeal, Fourth District, California.

Oct. 15, 1953.

Rehearing Denied Oct. 29, 1953.

Thomas Whelan, E.L. Bracklow, San Diego, for appellant.

Edmund G. Brown, Atty.Gen., Alan R. Woodard, Deputy Atty.Gen., for respondent.

GRIFFIN, Justice.

Defendant was convicted by a jury of the crime of robbery in the first degree in that on February 11, 1952, by force and fear, he took $10,000 from the possession of one Percy Welch, which money was the property of Julius Kahn and Earl Brodie, owners of the Club Royal. It was also found at the time, that he was armed with an automatic pistol. He entered a plea of not guilty to the charge, admitted four prior convictions of felonies, and that he served terms in state's prisons therefor.

On this appeal there is no question raised about the evidence not showing the offense was committed. The main complaint is that the evidence is insufficient to convict defendant of the crime charged and particularly as to his identification as the culprit.

The evidence connecting the defendant to the crime charged may be thus summarized: Early in the morning on February 11, a robber gained entrance to the Club Royal, which was a cafe and bar located at Third and C Streets in San Diego. He exhibited a gun to Welch, the colored night janitor, who was then the only occupant of the club. After backing Welch into a hallway the robber tied Welch's hands and legs with tape, told him to be quiet, and then entered the office of the club, pried open the safe, and removed $10,000 therefrom. He then told Welch that he had better not identify him or he would kill him and if he didn't he would get somebody to do it for him. The robber left. Welch worked his way to the street and the officers and proprietor were called. He gave the police his description of the holdup man as "a man with dark *** needed a shave *** kind of a moon face, with black hair and shining black eyes, weighing about 150 pounds", was around 50 years of age and between 5 feet and 5-foot 3 inches tall. He testified he went to the police station to look at some pictures of certain individuals, but apparently did not identify any of them as being the picture of the culprit who robbed him. Later, in July and August, the officers obtained a picture of defendant and called Welch to the station and showed him several pictures, including that of defendant. Welch said that the photograph of defendant "looked like the man". The testimony is that he selected the defendant's photograph before any officer told him that it was defendant's picture. Welch requested that another "stand-up" photograph of defendant be obtained. Later the officers took the photograph to Welch at the place of his employment and one officer stated to Welch that "he knew it was the man" because "they got pretty good dope on him". It is true that Welch never made a positive identification of the defendant. On the other hand, he never said he was not the man.

It affirmatively appears that Welch was quite frightened the night he was accosted. He was made to back up with the loaded pistol pointed at him. He had an opportunity to observe the accoster. One ceiling light of about 50 watts was lit, as well as a small light back of the bar. The accoster had on a dark-colored hat pulled down over his head and eyes, and only portions of his hair and face were visible to Welch. He was under admonition not to give an accurate description of the accoster. Apparently, from the statements of the trial court in denying a motion for new trial, the witness acted quite nervous while testifying in the presence of the defendant in the courtroom.

As to the identification of defendant and the circumstances and conditions under which Welch made the limited observation, his testimony, both direct and on cross-examination, may be thus summarized.

In a question propounded by the court as to whether or not the witness did or did not notice certain things that evening, Welch replied: "Judge, Your Honor, I was scared. I tell you I was so scared, I didn't think that I had no blood in my body for three or four days". He testified that the man who tied him up proceeded directly to the safe; that he seemed to know where it was and "to know his way around in there"; that he inquired of Welch, "Where is the safe, to my right?" and Welch said "Yes", and he commenced hammering on it; that defendant brought a little brown bag with him and carried the money away in it. When asked to describe the culprit Welch said he was wearing an overcoat and a dark hat, "needed a shave ***. He was very hairy and very dark, and with long black whiskers". A dark hat was placed on Shaheen's head in the courtroom. Welch was asked to look at him and say if he resembled the man who held him up in the Club Royal, and he said: "Yes, he resembles him". Defendant was then asked to turn sideways and the witness stated: "Yes, he do resemble him." When asked if he thought the defendant was the man who held him up he stated: "I couldn't say that is the man, Your Honor, because I do not know ** I would like to say, myself, but I just cannot because I don't know. If I knew I would say he was." He then testified that he had not, in his lifetime, seen anyone who resembled the man who held him up as much as the defendant did, but it did seem to him that the robber had more hair than defendant had at that time, and that his skin seemed darker, but he couldn't see much of his hair for the pulled-down hat; that he could not observe everything too well "because I was afraid"; that "the man's eyes were black and shiny ** looked desperate and dangerous" to him; that at the police station and trial defendant was smooth-shaven and his skin looked lighter than that of the culprit, but he could not say whether or not the darkness was due to sun-tan, but he thought the culprit "was born dark" but he knew he was not colored; that "his voice was rugged and sharp, sounded something like a foreign accent or broken English" and seemed to be different from the voice of the defendant when he was interviewed at the jail; that defendant appeared to him to have Jewish or Italian features.

The prosecution also produced the officers who returned the defendant from Ohio, where he was arrested about October 29, 1952. They related conversations had with him. Some conversation related to a picture of defendant which the officers had obtained in Ohio and defendant wanted to know where they secured it. Defendant asked the officers if they knew one Billie Layton, in San Diego, and the officers said they knew him as a gambler only. Defendant was silent for a moment and then said: "Well, I am sorting out the black peas from the green peas. *** I might be able to come up with who fingered me". Defendant was asked whether or not he had been in San Diego and he denied ever being there or "pulling the job at the Club Royal". He stated he had been in Los Angeles. The officer told him he had heard that defendant had been "shook down" for the money in Chicago and defendant denied he had ever been in Chicago. In one conversation he stated that the Negro in San Diego would not be able to identify him and the officer said: "We haven't told you there was a colored person involved in this. You must know something about it or how would you know there is a colored man involved?" Defendant remarked that his attorney in Ohio told him. The officer stated that so far as they knew his attorney did not know, and he then remarked: "Well, I heard it in Toledo". There is evidence, however, that the California officers did relate the facts to the Ohio authorities but not in the presence of defendant's attorney. The officers then stated that they and defendant started a conversation as to the difference in penalties in Ohio and California for the crime of robbery, and also pertaining to second-degree burglary. Defendant was informed that he was being returned on the charge of robbery, and the officer told the facts surrounding the commission of the crime with which defendant was charged. Defendant then remarked: "Why wasn't I charged with burglary? It sounds like burglary to me". The officers then testified that defendant's color at the trial was a little lighter than it was when they picked him up in Ohio because he had more sun-tan, and said he was always playing golf and never wore a hat; that his hair was then a little "bushier" on the sides when they picked him up because he then needed a haircut. One officer stated that the defendant told him he had not been in California at all.

When they arrived in San Diego the officer told defendant that the discussion they had in regard to the penalties for burglary was not correct since he had the opportunity to look it up, and defendant was asked if he intended to plead guilty to the charge and waive a preliminary; that defendant replied he "didn't intend to plead guilty at this time, that he would let us know"; that defendant again insisted on knowing how the officers obtained his picture in Ohio; that when confronted with a photostatic copy of a contract of sale of an automobile to him in Los Angeles about January 14, 1952, defendant was asked if that was his contract. He was then asked how long he had lived in Los Angeles and he said about four months but did not remember his address. He was then asked if he did not live at the Tower Apartments and he stated he did. He was again told about the necessity of informing the district attorney of any contemplated plea of guilty and he replied that "he didn't intend to at this time". The officer then stated that about November 11, he talked to the defendant in jail and told him they had a local problem which they were trying to clear up and if defendant would give them some help on it they would be able to arrange it for defendant to enter a plea of guilty to second-degree burglary; that defendant stat...