People v. Thompson

• Decision Date: 16 May 1955
• Docket Number: Cr. 3076
• Citation: 133 Cal.App.2d 4,284 P.2d 39
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence L. THOMPSON, Norman Smith and Clarence Williams, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 39

284 P.2d 39

133 Cal.App.2d 4

PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence L. THOMPSON, Norman Smith and Clarence Williams, Defendants and Appellants.

Cr. 3076.

District Court of Appeal, First District, Division 2, California.

May 16, 1955.

Hearings Denied June 8 and June 15, 1955.

George Nye, Public Defender of Alameda County, Rudolf H. Michaels, Asst. Public Defender, Oakland, for appellant Williams.

Steward, Kennedy & Cannon, Joseph G. Kennedy, San Francisco, for appellant Smith.

Clarence L. Thompson, in pro. per., Represa, for appellant Thompson.

Edmund G. Brown, Atty. Gen. of the State of California, Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

NOURSE, Presiding Justice.

The defendants, Clarence L. Thompson, Norman Smith and Clarence Williams were jointly charged with and found guilty by a jury of 1) kidnapping for the purpose of committing robbery, § 209, Penal Code, 2) robbery, 3) burglary, connected together in their commission; the defendant Thompson was charged with, and admitted, three prior felony convictions, defendant Smith two, and defendant Williams one. Their motions for new trial were denied and they were sentenced to San Quentin--the three sentences of each of them to run concurrent with each other but consecutive to any prior incompleted sentence. They appeal from the judgments and from the order denying their motions for a new trial.

When on December 11, 1953, at 7 p. m. James A. Brennan, the Controller of the Associated Metals Company, left the office of the company at 2730 Peralta Street, Oakland, after having locked up he found that one of his front tires was flat. The light was not good. A man with a gun in his hand ordered him to move over to the seat next to the driver's seat, got into the driver's seat, and told him that they were going for a little ride. When he turned to that man another person in the back seat, of whom he had not been aware, hit him on the side of the head and ordered him to look straight ahead. The first man drove the car approximately one and a half blocks to a darker area, took his wallet, searched him for weapons and demanded the key of the front door and the combination of the safe which Brennan gave him writing down the combination. The man gave the pistol to the one in the rear, told Brennan to do what he was told and went to the office of the company. Brennan did not see the man in the rear, but his speech was that of a colored person. He asked Brennan to pass back the money he had with him and Brennan did so. A man came to the car and the man in the back asked him how much he had got. The latter then ordered Brennan in the back seat and a third man appeared who tied Brennan's ankles and wrists with tape and put a piece across his mouth. The third man also had a colored accent. After the three left, Brennan freed himself by breaking the tape. He found his wallet in the car; nothing had been taken from it. It was found that from the safe a metal cash box with currency, checks and some copies of sales slips and a second metal box, containing employees earning records were missing. It was also found that the empty tire had no defect so that the air had probably been let out.

At a police line-up of negroes among whom were the defendants Brennan could not identify any of them by sight and his only identification was that the voice of one of the men, said to have been the defendant Thompson, sounded like the man who had been in the front of the car. He had 'a sort of a hard penetrating type of voice'. As to the third man Brennan testified that he was a very small man from whose appearance he would not be able to tell whether he was caucasian or negro. Mr. Brennan also testified that in his presence a police inspector told Williams that he must know Mr. Brennan, because Mr. Brennan knew him, which was not true. The defendants Thompson and Smith were together in a car with a third man, not Williams, when they were arrested. Smith was driving. The car was registered to Smith's girl friend. In the glove compartment two rolls of tape were found. At the home of the girl friend a pistol was found of the same kind as the one with which Brennan was threatened.

The verdicts against the three defendants are supported mainly by their confessions and other statements made to police inspectors when they were under arrest and by the accordance of the facts stated in these confessions with those of the crime stated above, to which Mr. Brennan testified. Each of the confessions implicates the other defendants, but the confession of each was duly received in evidence as against himself only and the jury was repeatedly so instructed. Both Thompson and Smith separately indicated to police officers the place where they had thrown away the boxes taken in the burglary. First Thompson showed a spot different from that shown by Smith, but the second time he brought them to the some spot as Smith. The boxes were not found there.

At the trial all three defendants denied all connection with the crime and the making or voluntary character of their alleged statements. They appeal on separate briefs and their grievances will be discussed separately.

Appeal of Thompson

This appeal is taken in propria persona. Appellant contends first that Sections 209 and 207 Penal Code are unconstitutional under Federal, U.S.C.A.Const. Amend. 14, and State, Const. art. 1, § 13, constitutions as violative of the due process and equal protection clauses because they make it possible to prosecute one person, like appellant, for kidnapping for the purpose of robbery, whereas another on the same facts would be prosecuted for robbery only, so that the threat of prosecution for kidnapping could be used as a means of extortion. The contention is wholly without merit. It might at most have had some factual basis in the text of Section 209 Penal Code prior to the 1952 amendment, when confining, holding or detaining a person to commit robbery was sufficient to subject him to the severe punishments of that section, even when there had been no confinement other than that necessarily incident to the commission of the robbery. See People v. Knowles, 35 Cal.2d 175, 217 P.2d 1, especially the dissenting opinions but the 1951 amendment requires for kidnapping to commit robbery that a person be kidnapped or carried away, an element of the crime present in this case where Mr. Brennan was carried away in his car for one and a half blocks, People v. Chessman, 38 Cal.2d 166, 192, 238 P.2d 1001, but not normally incident to a robbery. (Even the old text was not held unconstitutional in the Knowles case. The minority only criticized the construction of the section as applying to a confinement necessarily incident to the robbery.) Contentions as to attempts at extortion in the above manner in this and in another case which are not based on any evidence at the trial cannot be considered on this appeal.

Appellant next contends that the verdicts against him were as a matter of law not supported by the evidence. He reaches this result mainly by eliminating as not legal evidence a statement written by Inspector Rodman and the testimony of said inspector that he took it when Thompson orally made it on February 1, 1954, but that Thompson after having read it refused to sign it. The statement contained among other things Thompson's participation in the crime as the man who sat in the back of Brennan's car, whereas defendant Smith played the principal part in the front seat and in the office, his assistance in transporting the two boxes taken, the taking of money and checks from them and the division of the money at his place, among himself, Smith and 'Shorty' (Williams) he receiving $20. It further contained the statement that it was free and voluntary, without promises, force or threats, to which circumstances Inspector Rodman also testified. Thompson at the trial denied the making and the truth of all the statement. The written statement was received in evidence over unspecified objection of defendant, whose attorney had earlier expressly declared that he would let it go in without voir dire when it was read by Inspector Rodman to the jury as the statement given by Thompson. It obtained its evidentiary value from Inspector Rodman's testimony as to its taking and contents. Annotation, 23 A.L.R.2d 919, 924 et seq., § 5. An oral confession can be proved by parol evidence of any person who heard and understood it when it was made by the defendant. 8 Cal.Jur. 117; People v. Luis, 158 Cal. 185, 193, 110 P. 580. Even if the unsigned sheets of paper should not have been received in evidence, the error would not have been prejudicial after the unobjected reading of the statement contained in them to the jury by Inspector Rodman. The weight to be given to said evidence in connection with the evidence of Mr. Brennan was for the jury and we cannot say that it was insufficient as a matter of law.

Appellant claims error in including in the information the first count relating to kidnapping for the purpose of committing robbery although this count had allegedly been excluded by the committing Magistrate. As nothing with reference to the appearance of defendant before the Magistrate is in the record, we cannot consider the factual basis of the contention. But at any rate appellant did not move in the Superior Court to set aside the information on that ground in accordance with Section 995 Penal Code and hence the defendant is precluded from afterwards taking such objection, § 996 Penal Code; People v. Sierra, 117 Cal.App.2d 649, 652, 256 P.2d 577; People v. Reimringer, 116 Cal.App.2d 332, 337, 253 P.2d 756.

It is contended that under Section 1127 Penal Code it was the duty of the court on its own motion to point out to the jury by instruction all the evidence they could consider against the defendant. The section does not contain such requirement....