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District Court of Appeal, Second District, Division 3, California.

PEOPLE v. SMITH et al.

Cr. 3982.

Decided: July 24, 1946

Crispus A. Wright, of Los Angeles, for appellants. Robert W. Kenny, Atty. Gen., and Alberta Gattone, Deputy Atty. Gen., for respondent.

Defendants Mrs. Arneta Smith, Mrs. Marjorie Wright, Mrs. Willie Lee Sharp, and Miss Johnnie Lee were charged jointly by information with the crime of robbery from the person of one Mike Wolka, by separate count with the crime of assault by means of force likely to produce great bodily injury, and by a third count with another offense of robbery committed against Jesse Lee Ford. They were tried by the court. Mrs. Arneta Smith and Mrs. Marjorie Wright were found guilty as charged in Count I, Mrs. Arneta Smith, Mrs. Willie Lee Sharp and Miss Johnnie Lee were found guilty as charged in count III, and the crimes of robbery were found to be of the second degree. Mrs. Willie Lee Sharp and Miss Johnnie Lee were acquitted as to count I and Mrs. Marjorie Wright was acquitted as to count III. Count II was dismissed. Defendants have appealed from the judgments and the order denying their motions for a new trial.

The sole contention on the appeal is that the evidence was insufficient to establish guilt. The complaining witness, Mike Wolka, 71 years of age, testified that he resided as 632 Stanford Street in the City of Los Angeles; that he had worked for five years for the Weber Show Case Company as a shipper but was not employed at the time; that on May 21, 1945, in the middle of the day, he bought a pound of cheese at a market at Third and Broadway; that as he was returning home and had reached the vicinity of Towne Avenue and East Fifth Street, he encountered a group of colored women; that defendant Wright jumped on him, put her hand is his pocket, that he held onto his pocketbook and that defendant Arneta Smith took his watch from his pocket, breaking the chain in doing so, and ran away; that defendant Wright slapped him twice in the face and that he slapped her once; that a number of the women then jumped on him, struck him, knocked him down, and kicked him while he was on the ground, breaking four of his ribs. He was confined to the hospital and placed in a plaster cast by reason of his injuries. He identified the defendant Sharp as one of the crowd of women and testified that she kicked him as he lay on the sidewalk. He could not count the number of women in the crowd, but thought there were maybe 10 or 15 altogether, including some men who were standing around. He testified that he knew the defendants Smith and Wright and that he did not know the others in the crowd. On cross-examination he stated that the first remark was made by one of the women, who asked him where he had stolen the cheese.

A witness, Eddie Jones, who worked in the vicinity, testified that he was standing 25 to 30 feet from the scene of the altercation; that he saw the women around Wolka; that ‘it seemed like they were dancing with him or something,’ and ‘this man gets up and starts walking off and looking back.’ He identified the four defendants as being present and heard someone say, ‘I hit him or kicked him’ or something like that. On cross-examination he testified he heard Wolka holler, and on redirect examination that Wolka was down when he first saw the altercation.

One of the arresting officers, Bagoye, testified that Wolka pointed out defendants Smith and Wright to him and that the witness Jones pointed out the four defendants who were walking along the street.

All the defendants admitted being on the scene but defendant Lee denied having seen Wolka. Defendant Sharp testified that she heard Wolka call defendant Wright a name and that defendant Wright hit him and he hit her back. Defendant Wright testified that Wolka hit her and that she hit him back. Defendant Smith testified that she and defendant Lee ‘ran up to see what happened’; that she did not see Wolka, and that they were then arrested, and that defendant Lee started to run away from the officers. All denied the robbery and that Wolka was knocked down or kicked.

There was no corroboration of the testimony of Wolka as to his injuries and hospitalization and no denial of it.

The argument of insufficiency of the evidence is devoted to alleged uncertainties and discrepancies in the testimony of Wolka. The witness spoke somewhat broken English and evidently misunderstood some of the questions asked of him. He gave a lucid account of the occurrence and the record discloses no reason for believing that the testimony was entitled to less credit than it was given by the trial judge.

The robbery of Jesse Ford, as charged in count III, was described by the victim. He was a carpenter who worked at a junior high school in Montebello. About 11:30 p. m. he alighted from a street car and was walking in the vicinity of Fifth and Scranton (Stanford). He identified defendants Smith and Sharp as two girls who came up behind him and grabbed him under the arm, and the defendants Johnnie Lee and Marjorie Wright as two who came up behind him after the first two grabbed him. The defendants Wright and Lee went through his clothes, in which he had a pocketbook, a knife, some smoking tobacco, a $10 bill, a $5 in the the pocketbook, and 60 or 75 cents loose in his pocket. The pocketbook and the loose change were taken and the smoking tobacco was taken and thrown away. While he was being shoved around, and before he was robbed, a man shouted to them, ‘Keep away from here, get out of here,’ and threatened to call the police and Ford said, ‘Why don't you call the law; what are you waiting on’; the women moved away, the man asked Ford also to move, and he walked around the corner, where he was grabbed by defendants Smith and Sharp, and the other two defendants being present and extracting the pocketbook while defendants Smith and Sharp held him. He saw no one but colored people in the neighborhood. Immediately after the robbery he called the police. He was cross-examined at length as to his ability to identify the defendants and was positive in his identification of them, other than defendant Wright, who was acquitted upon count III. All the defendants denied ever having seen Mr. Ford prior to the preliminary hearing, May 29. The two offenses occurred in the neighborhood in which defendants lived. The denials by defendants that Wolka was knocked down and injured as he testified, which injuries were satisfactorily shown, were sufficient in themselves to justify the court in refusing to give credit to their testimony. The testimony of Ford was positive and, if believed by the court, was sufficient to convict the three defendants of the crime committed against him.

Although it is startling, it is, unfortunately, not incredible that this group of women should have been roaming the streets in the vicinity of their homes, attacking and robbing male pedestrians. They were of mature years, and the most that can be said in their behalf is that they seem to have had an undeveloped understanding of their duty to obey the law. There was convincing evidence of their guilt, and the several judgments and the order denying their motions for new trial are affirmed.

SHINN, Justice.

DESMOND, P. J., and WOOD, J., concur.

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