People v. Sutton
| Decision Date | 29 December 1964 |
| Docket Number | Cr. 4534 |
| Citation | 231 Cal.App.2d 511,41 Cal.Rptr. 912 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph SUTTON, Defendant and Appellant. |
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.
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; 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.
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 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 to it, no motion to strike and no request for an admonition to the jury concerning it, and as defendant's guilt was clearly shown, the question and answer cannot be considered prejudicial. Nothing was said that would indicate to the jury that this witness was or was not a felon. The customary general instruction concerning impeachment by evidence of the commission of a felony was given. Felony was not defined. This would apply to the two felons' alibi witnesses under the first two counts, and to defendant himself on all counts. 2
No Error in Failure to Give Instruction.
Defendant contends that the trial court erred prejudicially in not instructing the jury, sua sponte, that a felony is a particular degree of crime and was not to be presumed from mere incarceration. Defendant offered no instructions on the subject. Defendant urges that there was a need for such an instruction because two of the alibi witnesses were impeached as felons and were residing in prison. Shelton, who was not a felon, was shown to be residing at the County Farm. Defendant contends that it was left to the jury to speculate as to whether Shelton's incarceration indicated that he also was a felon.
It is an elementary rule that a witness' credibility cannot be impeached for either misdemeanor convictions or arrest. (People v. Kennedy (1962) 200 Cal.App.2d 814, 819, 19 Cal.Rptr. 683.) Nothing in the record shows exactly what the witness Shelton was incarcerated for.
Defendant relies on the case of People v. Metzger (1904) 143 Cal. 447, 77 P. 155. In that case a defense witness was manacled by a deputy sheriff immediately after adjournment but in full view of the jury. The trial judge gave a cautionary instruction in regard to the fact that the jury should not be influenced in their decision by the fact that the witness was in custody. The reviewing court's opinion does not disclose whether or not the instruction was given on the court's own motion. The case was appealed on the theory that allowing the jury to see the witness handcuffed was prejudicial error because it unduly discredited him as a witness. The appellate court affirmed the decision pointing out the fact that the trial court cautioned the jury that they must not take the fact of handcuffing into consideration in determining their verdict. Defendant argues that the fact that in Metzger a cautionary instruction was given indicates that the court in the instant case should have given a cautionary instruction. This is a non sequitur.
"Cautionary instructions,' relating to certain kinds of evidence and witnesses, are given...
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