People v. Welch

• Decision Date: 28 January 1963
• Docket Number: Cr. 8238
• Citation: 28 Cal.Rptr. 112,212 Cal.App.2d 397
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank WELCH, Jr., Defendant and Appellant.

Page 112

28 Cal.Rptr. 112

212 Cal.App.2d 397

The PEOPLE of the State of California, Plaintiff and Respondent, v.Frank WELCH, Jr., Defendant and Appellant.

Cr. 8238.

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

Jan. 28, 1963.

Frank Welch, Jr., appellant, in pro. per.

Stanley Mosk, Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

A jury found Frank Welch, Jr., who had previously admitted three prior felony convictions, William Gillis and Margaret Morton guilty of second degree robbery.Only Welch appeals.He does not question the sufficiency of the evidence to support the judgment, but contends that he was not properly represented by counsel and that the lower court erred in permitting the prosecution to question him concerning prior felony convictions.

Lon McNiel was seated alone in a bar called the 'Brass Rail'; he had in his possession, among other things, a wrist watch, car key, jacket and wallet containing $75.Defendant Welch, Margaret Morton and Gillis entered the bar with one Roza and Dorothy Cooper.Margaret asked McNiel to buy her a drink and for a coin to put in the juke box.They sat together and talked and drank until 6:30 p. m., left with the rest and went to three other bars drinking at each one and finally to a liquor store, and then drove to a private residence where they met two other men.During this time Margaret took McNiel's wrist watch; McNiel later asked her for it but she said she didn't know anything about it.Later, defendants and McNiel went for a ride in Gillis' Pontiac; Gillis and defendant were in the front seat, McNiel and Margaret in the back.Gillis stopped the car in the hills; he and defendant got out, talked together, and then pulled McNiel by the legs from the vehicle during which Margaret hit him over the head, neck and arms.Having pulled him out of the car, one of them held McNiel down while the other beat him.He was then dragged some distance and left on the ground; defendants entered the automobile and drove away.During the struggle McNiel's wallet was stolen; his pocket was ripped and his jacket and car key were taken from him.He walked some distance to where he received aid and contacted the police; he was taken to the Central Receiving Hospital where photographs were taken of his face and his injured right arm.Defendants were apprehended in the Pontiac in the hospital parking lot; the officer found McNiel's jacket in the vehicle.When Officer Crowder saw McNiel's wrist watch booked as part of defendant's property, he asked defendant about it; he said that the watch was his, that he bought it for $2 or $2.50 from an unknown person down town two or three weeks before.He denied knowing or having ever seen McNiel.Asked about the injuries on his face, he said that he and some friends had been in a bar and upon leaving had been attacked by a 'Mexican' and a fight ensued.Gillis and Margaret Morton told Officer Crowder the same story concerning the attack by a 'Mexican.'

For the defendant, Welch's brother testified that he was present at the alleged robbery scene; that he, Roza, Murray, Gillis and defendant left the car and while outside he heard a kind of scream and Margaret tell McNiel to leave her alone; that defendant then asked McNiel to get out of the car; that he heard Margaret scream again and went to the rear where he saw defendant with blood on his head lying on the ground and McNiel standing over him; that he asked McNiel why he had done 'this,' hit him in the face and fought him on the ground until defendant, Gillis and Roza broke it up; that they left McNiel to take defendant to the hospital; and that en route Gillis dropped him, Roza and Murray off at a bar.Roza's testimony was about the same.Defendant Welch testified that he met McNiel in the Brass Rail and Gillis, Morton, Dorothy Cooper and Roza were present; that he later saw Margaret with a wrist watch which she said she took from McNiel; that he took it away from her and told McNiel he would give it back to him when he got ready to go hime and sobered up; that some time later they went for a ride and finally stopped near 'some kind of old buildings'; that all but McNiel and Margaret got out of the car; that he heard Margaret 'hollering' and saying 'leave me alone'; that he went up to the car and told McNiel to leave her alone, and grabbed him; that someone hit him with a beer bottle and he was knocked unconscious; that he did tell the officers that to which they testified but he did not then tell them the truth; and that he lied to them because he did not want to admit that he had been 'up there drinking and using rest rooms.'Margaret admitted the struggle but said it grew out of McNiel's attempt to proposition her.Her testimony concerning it and subsequent events was similar to that of defendant.She also said she lied to the officers.Gillis testified substantially the same as defendant and Margaret Morton.

Appellant's opening brief recites a lengthy version of what occurred based entirely upon his own testimony, and claims that McNiel was a 'prejudiced' witness and that he'invited this thing, although there was no robbery.'There is nothing incredible about McNiel's story; the jury, as the trier of fact, believed his testimony and rejected that of the defendants' witnesses.Viewing the whole evidence in the light most favorable to the verdict, we are satisfied that there is more than ample evidence to support the conclusion of the jury.(People v. Daugherty, 40 Cal.2d 876, 256 P.2d 911.)

While he now complains that during the trial he was denied the 'right to effective assistance of counsel in a criminal proceedings, guaranteed by the Sixth Amendment of the Constitution'(A.O.B., p. 3), because the court permitted single counsel to represent all three defendants inasmuch as there was a 'conflict of interest,' in the absence of anything in the record to the contrary, we assume that during the time defendant was before the trial court that he was satisfied with and agreeable to counsel's representation of him with the other two defendants, and that he consented to this arrangement.He was represented by private counsel of his own choice; he at no time raised any objection to him, to the manner in which he was being represented, or to the fact that counsel also represented Gillis and Margaret, nor did he ever suggest there was a conflict...