People v. Sutton, Cr. 4534

• Court: California Court of Appeals
• Citation: 231 Cal.App.2d 511,41 Cal.Rptr. 912
• Decision Date: 29 December 1964
• Docket Number: Cr. 4534
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph SUTTON, Defendant and Appellant.

Page 912

41 Cal.Rptr. 912 231 Cal.App.2d 511 The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Joseph SUTTON, Defendant and Appellant. Cr. 4534. District Court of Appeal, First District, Division 1, California. Dec. 29, 1964.

Page 913

[231 Cal.App.2d 512] Norman Tilbury, Walnut Creek (under appointment of the District Court of Appeal), for appellant.

Stanley Mosk, Atty. Gen., Robert R. Granucci, James Murad, Deputy Attys. Gen., San Francisco, for respondent.

BRAY, Justice.*

Defendant appeals from judgment of conviction after jury verdict, of violation of section 211, Penal Code (armed robbery).

SOLE QUESTION PRESENTED.

Should the trial court, of its own motion, have instructed the jury to disregard the fact of the incarceration of defendant's alibi witness?

RECORD.

Defendant was charged with three counts of armed robbery. Count 1, the robbery of the Esquire Bar on March 24, 1963; [231 Cal.App.2d 513] Count 2, the robbery of the adjoining liquor store the same evening; and Count 3, the robbery of Moore's Pharmacy on April 1, 1963. ¹ The jury found defendant not guilty under Counts 1 and 2 but guilty under Count 3. Defendant appeals from that conviction contending only that the court should have given, sua sponte, an instruction as hereinafter set forth.

THE EVIDENCE.

In view of defendant's acquittal under Counts 1 and 2, the evidence adduced concerning those counts need not be detailed. The defense under each of those counts, other than defendant's denial that he participated in the robberies, as he denied under Count 3, was an alibi. To establish his alibi on the first two counts, the defense called two confessed felons, who admitted participating in the respective robberies, but said that their third accomplice was one other than defendant. On cross-examination in impeachment of these witnesses, the prosecution brought out the fact that both of these witnesses had been convicted of felonies and were presently in prison. A Mrs. Betty Kirk testified that at the time of the two robberies defendant was with her. The jury acquitted defendant of the robberies charged in those two counts.

The evidence under the third count follows: At approximately 5:00 p. m. on April 1, 1963, Donald S. Moore, the proprietor of Moore's Pharmacy, 11275 San Pablo Avenue, El Cerrito, California, was discussing an order for Playtex rubber goods with a salesman, Richard Tuttle, when defendant and another man came into the store. Also in the store at this time were Mr. Moore's two clerks, Helen Prien and Dorothy Kinzel. Defendant walked up to Mrs. Kinzel and discussed the purchase of a pair of sun glasses. The other man walked around the store and then stepped behind the counter where the cash register was located. Defendant and the other man thereupon drew pistols and stated, 'This is a holdup. * * *'

During the robbery Sutton and his companion obtained cash and narcotics. Defendant was identified as a participant in the robbery by Mr. Moore, Mr. Tuttle, Mrs. Kinzel and Mrs. Prien, who were the four persons in Moore's Pharmacy during the robbery.

[231 Cal.App.2d 514] Jimmie Derrall Shelton testified as an alibi witness for appellant. It was Mr. Shelton's testimony that between the hours of 4:00 and 6:00 p. m. on April 1, 1963, defendant Sutton was with him. Shelton testified to meeting Sutton at approximately 4:00 o'clock at the Doggie Diner in Richmond, California, and thereafter the two had driven out MacDonald near 23rd and were together until 6:30 p. m.

On cross-examination of Shelton who had testified that defendant was with him at the time of the robbery, the prosecutor

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asked him, without objection, '[W]here are you presently staying?' He replied, 'I am out at the County Farm right now.' No further questions were asked him concerning his incarceration there. The question should not have been asked. Questions as this one apparently was, asked solely to bring before the jury the fact that a witness who has not been convicted of a felony is residing in a jail, are highly improper. A deputy district attorney should know better than to ask it. However, as no objection was made...