PEOPLE v. KANE

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

PEOPLE v. KANE.*

Cr. 3835.

Decided: March 07, 1945

George Stahlman, of Los Angeles, for appellant. Robert W. Kenny, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

The defendant was charged with robbery. He was convicted by a jury of the crime of robbery of the first degree, and the jury also found that at the time of the commission of the offense charged against him he was armed with a deadly weapon as alleged in the information. From the judgment of conviction and from an order denying him a new trial, he appeals to this court.

As his sole ground for appeal, he claims that the court committed prejudicial error in refusing to give two instructions proffered by him at the trial. Because of the character of the rejected instructions, it becomes necessary to epitomize the testimony produced at the trial. In that regard the record discloses that, on October 25, 1943, Marie H. Echols was, and for some years prior thereto had been, employed as assistant manager of Eaton's Restaurant located at 3550 Wilshire Boulevard, in the city of Los Angeles. During a part of that time, the defendant was working for the Hollywood Linen Supply and the complainant would see him almost daily when he delivered linen to the restaurant at which she was employed. They talked and chatted together from time to time and called each other by their first names. According to the testimony of the complainant, the last time she had seen the defendant prior to the commission of the offense charged was several weeks before. It was the custom of the complaining witness to go to the bank around 1 o'clock each day to deposit the restaurant's receipts, and appellant was aware of her practice in this regard. On the date charged in the information, at about 1 o'clock in the afternoon, the prosecuting witness took a money-bag containing some $2,700 from the safe at the place where she was employed, put it under her arm with her purse and, carrying the money, started to walk from the restaurant to the bank, which was located approximately five and a half blocks away from the restaurant. When she had travelled about a block and a half, according to her testimony, she was approached by the defendant, whom she recognized, notwithstanding the fact that he was wearing colored glasses and had two strips of adhesive tape over his nose. According to complainant's testimony, defendant reached for the money-bag under her arm, saying, ‘I'll take this'. Recognizing him, she said, ‘Don't be foolish. I know you.’ Thereupon appellant produced a gun, pointed it at the complainant and said, ‘I'm not fooling. This is loaded. I will shoot you.’ She replied, ‘Don't be foolish. I know you.’ Thereupon, according to complainant, defendant struck her over the head with the gun, knocked her down, took the money, and entered a maroon colored automobile with the turtle back up and drove away rapidly. The prosecuting witness immediately reported the robbery to the police.

In the course of an investigation of the robbery, Sergeants Swan and Powers of the Los Angeles Police Department went to an apartment house at 1432 North Formosa Street, in Los Angeles, about 1:30 p. m. on the date of the robbery. Defendant and his half brother at that time were the occupants of Apartment No. 7 at the aforesaid premises. When the officers arrived at the apartment house, accompanied by the manager thereof, they went to Apartment No. 7 and searched it. They found there in a built-in dressing table approximately $2,334, in denominations of twenty, ten, five and one dollar bills. The aforesaid two officers remained in the apartment until approximately 5 o'clock, when they were replaced by Police Sergeants Brennan and Wiseman. At about 5:30 o'clock in the evening the defendant arrived at his apartment, where he encountered the last named police officers and was placed under arrest. Officer Brennan informed the defendant that their presence in the apartment was occasioned by reason of an investigation of the aforesaid robbery, to which defendant replied, ‘I didn't pull any hold-up’, to which the officer said, ‘You pulled that hold-up of Eatons this afternoon. You know well what hold-up I am talking about.’ The defendant, however, continued to deny any complicity in the hold-up, saying, ‘I absolutely did not hold anybody up.’ At the time, Officer Brennan searched the defendant and took from his trousers pocket approximately $450. The defendant insisted that the money was his, that he had earned the same at his employment and also that it was all the money he had. Upon being asked by Officer Brennan to account for the $2,300, which had been found in the closet that afternoon, the defendant replied, ‘I guess I might as well tell you all about it. I pulled the hold-up and I hid the money in there. I hid the money in there, after taking out some of the money and putting it in my pocket.’ In response to a question by Officer Brennan as to what disposition he had made of the gun used in the hold-up, the defendant told him he had left it at the home of a Mr. Spellman. The officers took the defendant to Mr. Spellman's home and when the latter came to the door, the defendant said, ‘The officers have got me in the hold-up this afternoon and I want the gun that I left here with you’. Mr. Spellman produced the gun and delivered it to Sergeant Wiseman, after which Sergeant Brennan took five shells from the weapon. The defendant admitted to the officers that this was the gun he had used in the hold-up.

The defendant was taken to the Wilshire Detective Bureau, where further conversation was had with him. At that time he was asked why he had ‘pulled the job’, to which he replied, ‘I needed the money bad and I knew that they had quite a lot of money on week-ends from Eatons'. When asked how he knew that, the defendant replied, ‘Well, I went down there the day before or two days before and I watched the girl taking the money to the bank, and I knew about what time she went by, and I went down there on the 25th, today, and I waited until I saw her come out and start to the bank with the money. I walked up to her and I stuck the gun on her and I told her to give me the money’. After telling the officers that the complainant refused to give him the money, defendant said, ‘She started to wrestle over the bag of money, so I hit her with the gun * * * The blow knocked her down to the pavement and I jerked the money-bag away from her and ran to my car and got in the car and drove away.’ Defendant further stated that he had the turtle back of the car raised so that it would be difficult, if not impossible, to read the license plate which was on top of the turtle back. When asked by Officer Wiseman if he did not think it was very foolish to hold up someone who knew him, the defendant answered, ‘Well, I didn't think she would recognize me’, because, as stated by him, he had ‘put dark glasses on and the adhesive tape on his nose’.

Testifying as a witness in his own behalf at the trial, defendant stated he had known the complainant some three years, during which time he had, as heretofore related, seen her practically every day and that he had had numerous conversations with her. He further testified that some four or five months prior to October 25, 1943, the complainant stated to him in the restaurant, ‘George, how about making some easy money?’ to which he answered, ‘It looks kind of easy. We can arrange it.’ According to the testimony of the defendant, the complainant told him the money was insured and they could divide it equally between them. He further testified that frequently during the ensuing months they would discuss the plan for staging a hold-up. The defendant testified that they discussed how they would ‘make it look like a real robbery’; that he would be waiting on the corner for the complaining witness and that he would disguise himself. He testified that he communicated with the prosecuting witness on the morning of October 25th and that she said to him, ‘This is a nice week-end’, to which he replied, ‘O.K., I'll meet you at Normandie and Wilshire’; that on the same afternoon he was waiting in his car when complainant walked up to him, whereupon he said, ‘It looks pretty safe. We might as well do it now. You give me the bag and I'll step aside and push you. We will make it look like a real robbery so I will push you now and kind of make it look like I am hitting you, and I will take the money and speed away.’ He thereupon ‘shoved her and she fell to the ground’ and, as he left, the complainant screamed. The defendant admitted at the trial that he had the loaded gun in his pocket at this time, but denied that he had removed it therefrom or that he had struck the complainant with it. In explanation of his failure to tell the police of the claimed prearranged plan for the hold-up, defendant stated that he desired to ‘protect’ the complainant and that it was only when he found out how severe the punishment for robbery was that he decided not to ‘protect’ the complaining witness any longer.

The prosecuting witness testified in rebuttal that she had never arranged with appellant to have him hold her up and take the money away from her, and specifically denied all of the testimony given by the defendant in that regard.

As hereinbefore narrated, appellant's sole contention is that he was prevented from having a fair and impartial trial by reason of the refusal of the trial judge to give to the jury the following instructions allegedly based upon the theory of appellant's defense:

‘Before you can convict the defendant in this case, you must be convinced beyond a reasonable doubt that the property taken was against the will and without the consent of Marie H. Echolls.

‘If you believe from the evidence that there was an agreement or understanding between the defendant George Kane and the complaining witness Marie H. Echolls, or permission upon the part of Marie H. Echolls, that the property should be taken by the defendant George Kane, then you must find the defendant not guilty, or if you have a reasonable doubt as to whether or not this consent and permission was given by Marie H. Echolls to the defendant George Kane, then you should resolve this doubt in favor of the defendant and acquit him of the charge as contained in the information.’

‘You are instructed that if the complaining witness, Marie H. Echolls, in any manner instigated and encouraged the commission of the offense which amounts to consent to the wrong complained of, then you should find the defendant not guilty.’

Appellant's defense was that the crime of robbery was not committed because of the existence of an agreement and understanding between him and the complainant to go through the form of robbing her and then to divide equally between them the money obtained in the simulated hold-up; that the essential elements of force and fear required in the crime of robbery were not present because of her consent to and willing participation in the wrong complained of.

The court instructed the jury in the exact language of section 211 of the Penal Code, which defines robbery as ‘* * * 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.’

The Code definition is in simple English and requires neither explanation or amplification.

The jury was further instructed as follows: ‘A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal but the effect of this presumption is only to place upon the state the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: ‘It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge’.'

The court having clearly stated to the jury the elements necessary to constitute the crime charged, it must be presumed that the jury understood that if any of those essential elements were absent the defendant was entitled to an acquittal. People v. Ortiz, 63 Cal.App. 662, 669, 219 P. 1024; People v. Bedoy, 80 Cal.App. 783, 785, 252 P. 1061.

When, therefore, the jury was instructed that the essential elements of the offense must be proven beyond a reasonable doubt, every substantial right of the defendant was protected, because the trial judge properly covered the law on the subject of robbery and reasonable doubt and therefore no error was committed in refusing additional instructions requested by the defendant on the same subjects. People v. Wright, 26 Cal.App.2d 197, 208, 79 P.2d 102; People v. Parchen, 37 Cal.App.2d 215, 223, 98 P.2d 1045.

The law does not provide that proof of the corpus delicti or crime, as such, be established beyond a reasonable doubt. People v. Alba, 52 Cal.App. 603, 605, 199 P. 894; People v. Mohr, 24 Cal.App.2d 580, 582, 75 P.2d 616. Whether a defendant in a criminal action is connected as a principal with the act or acts which constitute a crime, however, must be proved beyond a reasonable doubt, and as indicated above the jury was correctly instructed as to the doctrine of reasonable doubt.

Furthermore, the refused instructions did not contain a correct statement of the law, hence were properly refused. Whether the property taken was against the will and without the consent of Marie H. Echolls was related to and connected with proof of the corpus delicti only, which fact, as above noted, need not be proven beyond a reasonable doubt. The extent and application of the doctrine of reasonable doubt is statutory. Penal Code, § 1096.

That it is not error for the court to reject proffered instructions which are ambiguous, contain incorrect statements of the law, or which would confuse the jury, is elementary. People v. Housman, 44 Cal.App.2d 619, 628, 112 P.2d 944; People v. Hartwell, 39 Cal.App. 24, 29, 177 P. 885; 8 Cal.Jur. 630. And having fully and fairly instructed the jury on the essential elements of the crime charged, the degree of proof required for conviction and the doctrine of reasonable doubt, the court was not called upon to correct additional proposed instructions which were erroneous. People v. Cipolla, 155 Cal. 224, 227, 100 P. 252.

In view of the array of undisputed evidence which we have hereinbefore narrated in detail, it appears to us that its character was such that the jury could not have done otherwise than convict appellant of the crime charged against him. Even though it be conceded that it was error for the court not to instruct the jury more fully on the theory of the defense, we are of the opinion that the resultant verdict would not have been different and that appellant would have been convicted even though the jury had been instructed as requested by him. The conviction must therefore stand. Art. VI, sec. 4 1/212, Constitution of California; People v. Kelso, 25 Cal.2d 848, 155 P.2d 819.

The judgment and the order denying defendant's motion for new trial are, and each is, affirmed.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.