People v. Treggs
| Decision Date | 29 June 1959 |
| Docket Number | Cr. 6366 |
| Citation | 341 P.2d 342,171 Cal.App.2d 537 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Harry TREGGS and Huey Owens, Defendants. Harry Treggs, Defendant and Appellant. |
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.
In an information filed by the District Attorney of Los Angeles County, Defendants were charged with the crime of robbery (Penal Code, Sec. 211) in that they took $3,400.00, and a quantity of whiskey of the value of $54.00 from Maurice Terk, one of the proprietors of a liquor store and market. Appellant Treggs was also accused of a prior felony conviction for violation of Section 470 of the Penal Code, and of being armed with a revolver at the time of the robbery. The prior conviction was admitted. Appellant pleaded not guilty and the cause was tried before a jury which returned a verdict finding him guilty of robbery of the first degree, and that he was armed at the time the offense was committed. At the time judgment was pronounced the court found that appellant was not armed at the time of the commission of the offense and sentenced him to state prison. From the judgment and the order denying his motion for a new trial appellant prosecutes this appeal.
An examination of the record reveals the following as a fair statement of the factual background surrounding this prosecution.
At approximately 8:30 p. m. on the evening of October 20, 1957, the Rite-Way Market and Liquor Store in Los Angeles County was robbed by a group of men.
Ann Terk, a co-owner of the store, was the first to observe them. She was standing by the cash register at a long counter that ran the length of the 70 by 150-foot store, to the right as you come through the entrance. She thought four men entered the store.
When the men walked over to Ann Terk, her brother Maurice Terk, a co-owner, was standing about eight feet away by the candy counter, stocking it.
One of the men asked Miss Terk for cigarettes.
'When one man asked me for a package of Winstons, I turned around to get it; the other fellow that was with him, that was directly in front of me, went over to the candy display close to my brother. I thereupon got the Winstons, rang up the sale; and when the cash register was opened, the man that was on my left came around by the cash register right next to me and put a gun into my ribs. He said, 'This is a holdup."
Maurice Terk's attention was attracted by the statement, and he saw three men. He was told to walk to the back of the store by the gunman, and either to 'hurry up' or 'go to the back'. He complied.
After Ann Terk observed the gun and heard the announcement of the holdup she backed away and rang a burglar alarm. She was told to come forward, around to the other side of the counter, and to go in the back room of the store with her brother. Both were told to lie down.
Maurice Terk testified that after they assumed this position his sister was taped. Her ankles were taped, her wrists were taped behind her back and some tape was put over her mouth. A voice told Maurice Terk in the darkened back of the store to come forward to the money order section. Under gunpoint the money order section was forced open, when Terk was taken back to the safe. 'The fellow that was behind me couldn't get the safe open, and I had to do it,' Terk testified. Then Terk was brought forward to the money order section and told to lie on the floor next to three customers in the store. The men took $3,400, and $54 in whiskey.
Maurice Terk was sure that Harry Treggs was not in the store at the time of the robbery, and that he did not see him that day at all, though he knew Treggs as a customer. Nor could Terk's sister, Ann, place Treggs at the scene, though she thought the gunman looked somewhat like him, however 'I don't think he is the man though.'
Maurice Terk described his opportunities to see the men. When the holdup began he was aware of someone behind him and glanced around, but not completely, just turning his head about 90 degrees, and keeping it there for two or three seconds. He faced the back of the store.
Then he looked again to the cash register where his sister stood. He saw a Negro with a gun, his back towards Terk, but he never saw his face. He saw another man too, but kept his attention on the gunman, concerned for his sister's welfare.
Then he walked to the rear of the store, with no opportunity for a further look into the drak rear of the store, set off by a swinging door. When he was brought to the money order section that too was drak, though he got a glance at the man who brought him there. During the two or three minutes in the money order section, by the light from a window in the darkened room, he got a profile view of the man who was opening the money order drawer, though he noticed no unusual facial characteristics.
Next they went to the safe, Terk followed by a man, who, his back to Terk, tried to open the safe but couldn't, and had Terk do it. Terk had no chance to view anything on his way back to the money order section and when he got there, lying on his stomach, he saw nothing.
Terk thought that appellant Treggs' codefendant Huey Owens was the man behind him, but he couldn't positively identify him. Ann Terk named Huey Owens as 'the one close to my brother at the candy counter'.
Miss Terk saw the men when they came into the store 'in a group'. One of the four she couldn't describe 'because he didn't come close to me,' but she did notice that there was a fourth one who went to the coke machine, to the left of the store as you enter, and opposite from the counter where Miss Terk stood. Frightened, watching the gun when told of the holdup, she managed to notice that the gunman had kinky hair and wrinkles in his forehead. Then when they made her go to the rear she no longer faced them and she had no further chance to observe.
Before she went back, she noticed that the man near her brother and one of the men near herself 'looked like brothers or relatives'. They 'had the same facial characteristics'. The one near her Both men had 'rounder faces'. The one who asked for the Winstons 'had a little broader face, had a mustache'. She observed the man behind her brother for 40 or 50 seconds. She admitted that it was harder for her to distinguish colored people at the time of the offense than at the trial, as she had since acquired experience.
None of the customers were able to make an identification. Arthur Dominguez, a carpenter, who was in the store at the time of the robbery, said he did not recognize the appellant, that he saw three colored men in the store, but he couldn't say how they were dressed. 'I'm just not sure' about Treggs, he said. But he thought he recognized Owens.
Bill Rody, a customer, who was unaware of the robbery, did not see anyone involved in what went on in the market.
Sergeant Aure of the Los Angeles Sheriff's Office testified to a conversation between himself, Treggs, and Sergeants Human and Thill of the sheriff's office. Sergeant Aure said appellant's statements were made freely and voluntarily, with no promises of reward or hope of immunity.
Sergeant Aure told Treggs he would turn him over to the Los Angeles Police Department.
'* * * At this time he (appellant) requested that I file the robbery count of the Rite-Way Market at 63rd and Holmes. I asked him--at this time I told him, 'Well, I can't even prove that you were there.' I said, 'There's no one that can identify you.'
'He said,
'I then asked him, 'Well, where were you in the store?' And he says, 'I went over and stood behind the candy counter while the other fellows went to the back of the store.''
Sergeant Aure asked appellant Treggs how much money they obtained and he said approximately $385, of that Treggs' share was $100.
Sergeant Aure also showed Treggs a gun which the latter said looked like the one they used in the robbery. He thought that was the gun. Ann Terk testified, But she conceded her inexperience with firearms. Maurice Terk called it 'identical except for one respect'--'that the one that I noticed appeared to be yellower, as though it had been rusty and cleaned.'
Sergeant Human of the sheriff's department repeated Sergeant Aure's story, saying that Treggs admitted his presence at the robbery, said he received $100 of the stolen $385 and that he was in the background and doubted if the victims...
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