People v. Treggs

• Decision Date: 29 June 1959
• Docket Number: Cr. 6367
• Citation: 171 Cal.App.2d 546,341 P.2d 347
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of The State of California, Plaintiff and Respondent, v. Harry TREGGS and Bennye Treggs, Defendants. Harry Treggs, Appellant.

Page 347

341 P.2d 347

171 Cal.App.2d 546

PEOPLE of The State of California, Plaintiff and Respondent, v. Harry TREGGS and Bennye Treggs, Defendants Harry Treggs, Appellant.

Cr. 6367.

District Court of Appeal, Second District, Division 1, California.

June 29, 1959.

Harrison M. Dunham, Los Angeles, under appointment by the District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County, appellant and one Bennye Treggs were accused of the crime of Robbery (Penal Code, Section 211), in that they did, on October 12, 1957, forcibly take from James F. Moore, a deliveryman, $2 in a money-changer, $90 in money from his person, and cookies valued at 23 cents. Both were also accused of being armed with a revolver, and of having suffered a prior felony conviction under Section 470 of the Penal Code.

Appellant pleaded not guilty and the prior conviction was admitted. The cause was tried before a jury which returned a verdict finding appellant guilty of first degree robbery, and that he was not armed at the time of the commission of the offense. The co-defendant Bennye Treggs was acquitted. Appellant's motion for a new trial was denied and he was sentenced to state prison. This appeal is prosecuted from the judgment and the order denying appellant's motion for a new trial.

As to the factual background surrounding this prosecution the record reflects that James Francis Moore, a distributor and salesman of bakery products for Helms Bakeries, on the evening of October 12, 1957, between 6 and 7 o'clock, was in the vicinity of the two hundred block on East 70th Street, in the city of Los Angeles, where, according to his statement, 'I was robbed'. Identifying appellant as one of the persons present during the robbery, the witness testified, 'Well, I was riding down the street blowing the truck whistle * * * and a lady walked from the shadows * * * And walked toward the street. At first I wasn't positively sure that she wanted something, and she was walking right toward the truck. And she put her hand up, and I stopped. And she got in the truck and asked me for a dozen mixed cookies, which I proceeded to put in a bag.' Mr. Moore identified the lady as appellant Treggs' co-defendant, Bennye Treggs. The lady was in the truck 'somewhere between two and three' minutes, he said. And he had an opportunity to see her for thirty or forty seconds.

The witness said that the truck was well lighted inside, though it was dark outside. As the woman left the truck, a man stepped in from the sidewalk side and put a gun in his back. The witness testified that, '* * * when I saw the gun come in the door, I didn't pay much attention to how she left or what she took with her, or anything else'.

The man with the gun did not get in the truck. 'He was rather tall and he stood in the street with the gun in my back'.

The witness was told to lie down on the floor of the truck and 'at the moment' or 'thereabouts' appellant Treggs 'came in from the street side'. Moore noticed him with 'just an upward glance' for the space of a few seconds, while he was 'rifling my cash drawer in my truck'.

Treggs spoke to Moore: 'There's some more some place. Where is it?' And Moore told him.

Mr. Moore testified that he stated that his boss had taken about half of the money some two hours previously. Appellant Treggs asked, 'Do you swear to that?' And Moore responded, 'Yes, I do', while raising his hands.

The two men also took the contents of Moore's pockets, about ten to fifteen dollars in half dollars, and sausage cans filled with change, besides the contents of the cash drawer, and a money-changer.

Mr. Moore said he thought he told the lady the cookies cost 23 cents. 'I handed her the cookies; I most surely would have asked her for 23 cents.' But Moore didn't remember whether he got the 23 cents or not.

After collecting the money, the two men took off down a side street after warning Moore not to get up. If he tried to get up and run after them or holler they told him they would shoot him. The men did not 'rough up' Moore. A few minutes later Moore called the police. He picked appellant Treggs out of a group of five or six male Negroes at the police station. He also picked out Bennye Treggs from a group of three other Negresses.

The bakeryman said that he had seen a picture of the co-defendants previously in the office of Sergeant Aure, of the sheriff's office. 'Well it really wasn't shown to me, sir. I happened to see it accidentally. He had it in the center desk drawer, and he happened to open it, and I happened to see it; and I made an identification.' Concerning the identification of appellant by Mr. Moore, there was testimony that the latter saw the former 'Just momentarily * * * Just a few seconds'. The witness had been robbed on three other occasions. At the trial it was brought out that at the preliminnary examination, the witness was asked whether he had ever seen appellant before the occasion here in question, and he answered, 'I can't say for sure. I thought I had, but I am not going to say for sure. 'I'm not positive. In other words, I'll put it that way'. At the trial Mr. Moore was asked in connection with his statement that he had seen appellant on a previous occasion when he was robbed, '* * * Now, as a matter of fact, you weren't robbed before October 12th by Harry Treggs (appellant) were you?', to which the witness replied, 'As a matter of fact I wasn't'.

The victim of the robbery was also present during a conversation between appellant and Sergeants Aure and Human of the sheriff's office. With regard to that conversation, Mr. Moore testified:

'Q. All right. And did he answer you freely and voluntarily? A. Yes, he did.

'Q. Did you hear any promises of reward or lesser sentence, of probation, or anything? A. No, I did not.

'Q. And everybody was on good terms? A. Yes, sir, everything was very cordial.

'Q. And was there any threats of force or use of force, or anything like that, that...