People v. Wellman

• Citation: 296 P.2d 82,141 Cal.App.2d 101
• Decision Date: 24 April 1956
• Docket Number: Cr. 1056
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Stephen WELLMAN, Defendant and Appellant.

Page 82

296 P.2d 82

141 Cal.App.2d 101

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Stephen WELLMAN, Defendant and Appellant.

Cr. 1056.

District Court of Appeal, Fourth District, California.

April 24, 1956.

Barton C. Sheela, Jr., San Diego, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Emmet J. Seawell, Deputy Atty. Gen., for respondent.

MUSSELL, Justice.

The defendant was charged with the crime of robbery in that on or about August 10, 1955, he did wilfully, unlawfully, feloniously and by means of force and fear take approximately $100 from one Lewis L. Koers. The information further charged the defendant with having been convicted on two prior occasions of the offenses of robbery and assault with a deadly weapon. Pleas of not guilty and not guilty by reason of insanity were entered and on October 4, 1955, a jury returned a verdict finding the defendant guilty of robbery while armed with a deadly weapon and fixing the degree of the crime as robbery of the first degree. On October 7, 1955, the same jury found defendant to have been sane on the 10th day of August, 1955, at the time of the commission of the offense alleged in the information. A motion for a new trial was denied and defendant was sentenced to the state prison for the term prescribed by law. He appeals from the judgment of conviction, the sentence, and the order denying his motion for a new trial.

On August 10, 1955, at about 12:30 a. m., the defendant entered a bar known as the Sahara Club in La Mesa, San Diego county. He held a handkerchief to the left side of his face with his left hand and in his right hand he had a loaded 32 calibre automatic. He stepped up to the bar and upon being asked by the bartender (Mr. Koers) what he would have, replied 'I want everything, all the money you've got in that register.' Mr. Koers saw the gun pointed at him and replied 'Yes, sir, I will get it.' Thereupon Koers obtained the currency out of the cash register, which was a few feet away, placed the bills in two piles on the counter in front of the defendant, and upon being advised by the defendant that it was not enough, he wanted more, he returned to the register, took therefrom a handful of 'halves and quarters' and laid them on the counter close to the bills in front of the defendant. The defendant then said, 'I want more, that isn't enough'. Mr. Koers, who was wisely cooperative under the circumstances, turned to make a third trip to the register when one of the patrons of the bar, a Mr. Gerald Lessard, struck the defendant on the back of his head with a metal disk which he, Lessard, had been using in a shuffleboard game. Defendant was then thrown to the floor by Lessard and a companion. Lessard then sat on the defendant until an ambulance arrived, at which time the defendant was taken away on a stretcher.

Appellant argues that the only substantial issue raised at the trial on the robbery charge was whether a complete robbery was ommitted rather than an attempt to commit such offense, and that the trial court erroneously removed this issue of fact from the jury by his comments on the evidence.

The argument that merely an attempt to commit robbery was shown is based upon the assumption that the defendant did not obtain possession and control of the money involved. In People v. Quinn, 77 Cal.App.2d 734, 737, 176 P.2d 404, 405, this court said:

'Section 211 of the Penal Code defines robbery as follows: 'Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' This requires the taking of personal property which is in the possession of another from his person or immediate presence but does not require that this be done by the use of the hands of the person doing the taking. Where there is an intent to so take the property while some asportation is required it is well settled that the distance it is taken may be very small. People v. Clark, 70 Cal.App.2d 132, 160 P.2d 553. A very slight removal is sufficient. Driggers v. State, 96 Fla. 232, 118 So. 20. It would be a strained and unreasonable construction of the language of the statute to interpret it as necessarily requiring the taking of the stolen property into the hands of the one committing the robbery.'

In the instant case the bills were placed in front of the defendant in two piles and during the time the bartender was making the second trip to the register, the bills were 'fanned out'. As there was no one in close proximity to the defendant at the time, the jury could and apparently did reasonably infer from the circumstances that the defendant 'fanned out' the bills and obtained both constructive and actual possession thereof.

The comments of the trial judge which appellant claims were prejudicially erroneous are as follows:

'The main point in this trial here seems to center around the term of asportation. The only thing I can say to you under the evidence, follow the indications of the evidence we have here. The defendant came in and directed Mr. Koers to bring him the money and, according to Mr. Koers, why the defendant had a gun in his hand and, of course, anybody with a gun in his hand is always quite emphatic in his demands. Nobody is going to resist him. So as far as asportation is concerned, if Mr. Koers was acting against his will under the sole direction and control of the defendant in this case and he transported the money from the sale, or from the cash register, to the...