People v. Whalen

• Decision Date: 26 April 1954
• Docket Number: Cr. 5064
• Citation: 124 Cal.App.2d 713,269 P.2d 181
• Court: California Court of Appeals
• Parties: PEOPLE v. WHALEN et al.

Page 181

269 P.2d 181

124 Cal.App.2d 713

PEOPLE v. WHALEN et al.

Cr. 5064.

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

April 26, 1954.

Hearing Granted May 27, 1954.

Leonard Wilson, Los Angeles, for appellant Whalen.

Bentley M. Harris, Hollywood, and George R. Perkovich, Los Angeles, for appellant Solowitz.

Edmund G. Brown, Atty. Gen., Lester Ziffren, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County, Jack Whalen, Sam Solowitz, Roger Matthews and Julian Kranzberg were accused in Count I of the offense of assault by means of force likely to produce great bodily injury, a felony, Penal Code, § 245, and in the second count defendants were charged with the crime of attempted extortion, Penal Code, § 524.

At the time of arraignment each defendant made a motion to dismiss pursuant to the provisions of section 995 of the Penal Code. As to defendants Solowitz and Kranzberg, the motion was granted only as to Count II, but as to the remaining defendants, was denied as to each count.

Following pleas of not guilty the cause proceeded to trial before a jury resulting in verdicts finding all defendants guilty of assault, a misdemeanor, a lessor but necessarily included offense in that charged in Count I of the information. As to defendants Whalen and Matthews, they were also found guilty of attempted extortion as charged in Count II. Defendants Whalen and Solowitz filed a motion for a new trial which was denied.

As to defendant Whalen, proceedings on Count II were suspended, and probation was granted for a period of five years on condition that he serve a term of 150 days in the county jail. As to Count I, defendant Whalen's application for probation was denied and he was sentenced to serve 30 days in the county jail, said sentence to run concurrently with the jail sentence imposed as a condition of probation on Count II.

In the case of defendant Solowitz, who was convicted only under Count I, the proceedings were suspended and he was granted probation for a period of three years, one of the conditions thereof being that he serve the first twenty days of such period in the county jail.

From the judgment of conviction and from the order denying their motions for a new trial, defendants Whalen and Solowitz alone prosecute this appeal.

On appeal following a conviction in a criminal case we are required to view the evidence in the light most favorable to respondent, and the existence of every fact which the jury could have reasonably deduced from the evidence must be assumed. People v. Newland, 15 Cal.2d 678, 681, 682, 104 P.2d 778; People v. Reese, 65 Cal.App.2d 329, 337, 150 P.2d 571. Bearing in mind this rule, we consider the following a fair epitome of the evidence forming the factual background of this prosecution.

At about five o'clock on the evening of October 9, 1952, John Anton, the complaining witness, was leaving the Hollywood Post Office when he heard someone call 'John'. On turning around he encountered defendants Whalen, Matthews and Solowitz, who approached him.

Anton was unacquainted with defendants Whalen and Solowitz, but had known defendant Matthews for approximately a year. The aforesaid three defendants walked directly up to Anton and Matthews took hold of Anton's left upper arm and grabbed his shirt, while Whalen held Anton's right arm, and they pushed him against one of the closed windows at the post office. Defendant Matthews demanded $15 for a bet that defendant Whalen had made with Matthews for Anton. The latter denied owing any money to defendants and denied knowledge as to anyone calling Matthews on Anton's behalf. Whalen then asked if Anton had any money in his pockets and when the latter responded that was none of Whalen's business, Whalen replied, 'We are going to go into your pocket and get this $15.00.' After he reiterated his ignorance as to the alleged call to Matthews or the $15 transaction, Anton warned defendants that he was going to call the police. Anton then shook himself loose and walked over to one of the clerk's windows at the post office. Prior thereto defendant Matthews, with his fist, hit Anton in the upper left arm.

Complaining witness obtained some change from the clerk at the post office and as he was proceeding to the telephone he was stopped by defendants Matthews and Whalen and the latter told Anton, 'If you call the police, I will kill you. You will never get out of here.' Anton requested that he be left alone otherwise he would call the police.

He then went to the telephone with Whalen and Matthews following him. He was about to call the operator to ask for the police department when Whalen again told him, 'I am not kidding. If you call the police, you will never get out of here alive. There is a man standing at the door.' Anton then noticed defendant Solowitz at the entrance to the building and Whalen advised that Solowitz '* * * is one of our men, and if you know what is good for you, you will not make any calls.' Anton then responded that if he were left alone, he would not call the police.

Then Anton walked out of the building with defendants Whalen, Matthews and Solowitz following.

Outside the post office, Matthews repeated the demand for the $15 which Anton again insisted he did not owe. Whalen then told Anton that the former would give him one week to deliver the $15 to defendant Kranzberg at the Mark Twain Hotel. Again Whalen admonished Anton, 'If you don't deliver it to him, (Kranzberg) I will catch you in an alley with no witnesses and I will give you such a going over you will remember me forever.' When Anton replied he would go to the police if defendant did not desist from his threats, Whalen responded, 'If you go to the police I will kill you.' Thereupon Anton went to the Hollywood YMCA.

At approximately 7:00 p. m. that evening, Anton went to the Mark Twain Hotel to talk to defendant Kranzberg. As he entered the hotel, he saw Kranzberg behind the desk in the lobby of the hotel and saw defendant Solowitz, leaning against the telephone booth in the lobby. Anton told Kranzberg of the other defendants' request to have Anton deliver $15, but Kranzberg denied that Anton owed him any money.

When Anton asked why the defendants at the post office had threatened his life, Kranzberg remarked, 'We had better take care of you right now.' Thereupon Kranzberg made an inside telephone call and Whalen appeared. Whalen 'pushed (Anton) at the desk' and hit him '* * * right in between the eyes.' Anton staggered back against the telephone booth and against Solowitz when he felt a very sharp blow on the right side of his head. At this point, with Solowitz holding Anton's left arm and Kranzberg holding his right arm, Anton was held against the telephone booth and Whalen and Matthews continued for approximately one minute to hit and strike Anton with about ten blows mostly in his face, as well as kicking him on the left shin. Then Whalen advised, 'Let's get him (Anton) outside and really finish him off.' Kranzberg agreed to this suggestion, adding, 'I don't want any evidence in the lobby.'

At this point someone approached the entrance to the hotel and Anton heard people talking, whereupon Kranzberg told the other defendants, 'You had better get out of here, and fast.' Whalen again admonished Anton that if the latter reported anything '* * * about this to the police' Whalen would kill him.

Anton, with his right ear, mouth and nose bleeding, went to a washroom at the back of the desk to obtain a wet towel in an effort to stop the bleeding. As he came out of the washroom and returned to the scene, Kranzberg was observed wiping blood around the lobby but the other three defendants had departed.

As a result of the above mentioned encounter the complainant suffered a chipped front tooth, a bruise on his left shin, lumps on the right side of his head, a swollen nose, and his face was 'badly beaten up'. He also suffered pain in the left side of his chest, as well as from internal bleeding. For some three or four weeks after the assault the victim continued to expectorate and swallow blood. On October 10, 1952, two police officers took Anton to the receiving hospital, where, following examination, he was advised to consult his private physician. Thereafter, he was treated by his physician for the injuries above set forth.

Approximately a week prior to the preliminary examination, defendants Whalen and Matthews approached Anton in a restaurant. After asking him about his health, defendants inquired why he had not gone to defendants, who '* * * would have taken care of your doctor bill.' Whalen, after expressing his dislike for the police, further admonished Anton, 'Well, you know, if you know what is good for you, you're not going to testify against us next Wednesday.' When Anton indicated he was going to testify, Whalen reiterated, 'If you do, I will take care of you but good!' Defendant Matthews, at the same time, also advised Anton, 'If you testify against (us) next week, we are going to get you really beat you up better than last time.'

The complaining witness denied that he struck any of the defendants in the hotel, or on any other occasion. He admitted he had placed a $2 bet with defendants Matthews and Kranzberg several months prior to the date of the alleged assault.

Wm. W. Flannagan, a clerk at the Hollywood Post Office testified he saw the complainant at the post office about five o'clock on the afternoon of October 9, 1952; that he heard him say 'Call the police'. Shortly thereafter he saw Anton dialing the telephone at the post office with Whalen and Matthews within a few feet of him. He heard a brief discussion in which Anton stated he did not know defendants and inquired as to what they wanted. Flannagan then saw all parties leave the post office, including another person who was standing in the corner of the building during the...