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


Cr. 4925.

Decided: April 23, 1953

W. W. Robarge, in pro. per. Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.

In an information it was alleged that defendant committed robbery while armed with a pistol; and that prior thereto he had been convicted twice of robbery, and once of petty theft with prior conviction of a felony. He admitted the allegations of prior convictions. In a trial by jury, he was convicted of robbery in the first degree. He appeals from the judgment and the order denying his motion for a new trial. On a former appeal from a judgment of conviction on the charge herein, the judgment was reversed by reason of misconduct of the deputy district attorney. People v. Robarge, 111 Cal.App.2d 87, 244 P.2d 407.

Appellant contends that the evidence was insufficient to support the judgment. His principal argument is that the evidence was insufficient to identify him as one of the persons who committed the robbery.

A robbery was committed on March 5, 1951, about 3 a. m., in the office of the Clock Cafe, located near the intersection of Atlantic and Florence Avenues in Los Angeles County. The manager of the cafe, and George, the cook, were in the office. The manager had just finished counting the day's receipts of cash and checks, totaling about $1,600, and had put them in a bag preparatory to putting them in the safe. Then the manager saw, through the office door which was ajar, a man (a stranger) who was approaching the office door. The manager asked him what he wanted, and he replied, ‘This is a stick up.’ Then the man pulled a revolver from his overcoat pocket and came into the office. The manager pointed to the bag of money and said, ‘There it is.’ The man then told him to open the safe, and told George to lie on the floor. George complied, lying face downward. After the manager opened the safe, the man told him to get on the floor next to George, face downward and cover his eyes. The manager complied. The man who had so entered the office was not the defendant. While the manager and George were on the floor, they did not see anyone or anything in the room, but they heard a commotion and some talking and mumbling outside the office door. Then Doc, the janitor at the cafe, and Henry, the dishwasher, were brought into the room and told to get on the floor, face downward. The office was small and there was not enough space on the floor for the four persons to lie thereon, and Doc and Henry were commanded to lie on top of the manager and George. The complied. The manager and said other employees, while in that position on the floor, heard mumbling voices of other persons in the room, heard the telephone jerked from the wall, and heard the lights turned out. After a few minutes, when the victims got up from the floor, they found that the bag of money, and the other money which had been in the safe—about $1,800, had been taken from the office.

Doc, the janitor, testified that on said March 5th, about 3:30 a. m., while he was in a hallway of the cafe on his way from the kitchen to the storeroom, he saw a man standing there near the door of the office and about 15 feet from him (witness); Henry, the dishwasher, was standing beside the man; the man pointed an automatic gun at Doc and said: ‘Fall in line’; Doc laughed, and the man stood there looking at him about five or six minutes; when Doc took a few steps toward him, the man came up, put the gun against Doc's side and told him to get into the office; when Henry and Doc went into the office the man was right behind Doc; at that time the manager and the cook were lying on the floor, and another man (a stranger—not the defendant) was behind the door; then in compliance with the order of the other man, Doc and Henry lay down on top of the manager and the cook; the defendant is the man who was in the hallway and who ordered Doc to go into the office. On cross-examination Doc said that the man, whom he had seen in the hallway, was wearing a black hat, dark glasses and a blue suit; the man was five feet four inches in height; Doc was the same height; at the police station, when the defendant was brought in for identification, he (Doc) could identify him, but Doc told the officers to put glasses on defendant, and then Doc ‘could tell more about him.’ On redirect-examination he said that four men were brought out for identification and that defendant was one of them; he noticed the cheeks, jaw and mouth of defendant; defendant ‘looked like the same man I had seen out there’ in the cafe, but he (Doc) was not quite sure so he asked the police to put glasses on defendant; after they put the glasses on him, he (Doc) saw him ‘the same way’—‘Just the same man’—‘As had me out there’; at that time he (Doc) was sure the defendant was the same man who held him up. When Doc was asked, at the trial, if there was any doubt in his mind as to whether the defendant was the man, he replied: ‘That is the man.’

Henry, the dishwasher, testified that as he walked toward the washroom near the back of the cafe he met a man who pointed a gun toward him, and said: ‘This is a stick up’; then the man walked backward toward the office and required Henry to follow him to the office door; then Doc came from the back door, and the man ordered them to get into the office. Henry's testimony with respect to what occurred in the office was in substance the same as the testimony of Doc. Henry testified further that the height, cheeks and chin of the defendant ‘compare’ with the man who held him up that night at the cafe; the features of the man who held him up are ‘the features of this man here [defendant],’ but he (Henry) was not positive of the identification; the defendant looks like the man.

The defendant did not testify. A bartender, called as a witness by defendant, testified that on said March 5th, about 1:45 a. m., he saw the defendant at Top's Cafe (in Gardena), which is about 10 miles from the Clock Cafe, and defendant remained there about 20 minutes. A former wife of defendant, called as a witness by defendant, testified that on said March 5th, about 1:50 a. m., and about 2:20 a. m. (she being then married to defendant), she saw defendant in the Hitching Post Cafe (in Gardena), where she was a waitress; about 2:20 a. m., he took her to her home which was about eight blocks from the cafe; after arriving there they remained in the automobile about two hours. The mother of said last witness testified that she and her daughter lived in the same house; she saw the defendant and her daughter in front of her house on said March 5th from approximately 2:30 a. m. to 4 a. m.

A police officer, called as a witness by the People, testified that it is about 10 miles from the Clock Cafe to Top's Cafe; that ordinarily, between midnight and dawn, the approximate time required for driving from one of those cafes to the other is 20 minutes; that about 10 days after the robbery he had a conversation with the former wife of defendant at her home wherein he told her that defendant claimed that he was not in the Clock Cafe robbery, and he (officer) asked her if she knew of anyone ‘who could put him [defendant] someplace away from that job’; that she replied that she did not know of anyone but she would inquire about it.

Appellant argues, with reference to his claim of insufficiency of the evidence, that the only evidence presented to connect him with the offense was the testimony of Doc, who was impeached regarding his testimony as to the height of appellant; that the testimony of Doc was not sufficient to identify him. Doc testified with certainty that the appellant was the man who held him up. He also testified that the man was five feet four inches tall; and that the man was approximately the same height as Doc himself, whose height was five feet four inches. The deputy district attorney stipulated that the transcript of the preliminary examination shows that Doc testified in that proceeding that the man was ‘four’ feet tall. Any inconsistency in his testimony regarding the height of the man was one of various matters to be considered by the jury in determining the fact as to identification. Under the circumstances here, where Doc estimated the height of the man to be about the same as his own height, the jury might well have concluded that the statement in the preliminary transcript that the man was ‘four’ feet tall was an error in shorthand reporting or was an inadvertent statement of the witness. There was, however, further identification of appellant. Although Henry did not identify appellant positively, he did testify that the appellant and the robber were similar in appearance. It is not necessary that identification of a defendant be positive. People v. Hightower, 40 Cal.App.2d 102, 106, 104 P.2d 378; People v. Waller, 14 Cal.2d 693, 700, 96 P.2d 344. In People v. Waller, supra, it was said, 14 Cal.2d at page 700, 96 P.2d at page 348, “A conviction may be sustained, though the witnesses decline to swear positively, and testify merely that they believe the accused is the person whom they saw commit the crime.” The question as to identification was for the determination of the jury. People v. Best, 43 Cal.App.2d 100, 103, 110 P.2d 504. The evidence herein as to identification was legally sufficient.

Appellant also contends that the act of the police in requiring him to put dark glasses on, when Doc was attempting to identify the robber, was violative of the due process of law clause of the Constitution, in that, he was ‘made to bear false witness against himself.’ Doc testified that, when he was at the police station, he could identify the appellant without glasses being on appellant; that the appellant looked like the man, but he was not quite sure so he asked the police to put dark glasses on him—so he could tell more about him. In People v. Clark, 18 Cal.2d 449, 116 P.2d 56, it was held that it was not error for the court to require the defendants to rise in court for purposes of identification. It was also held therein that it was not error to require a defendant to remove the visor he was wearing in court, so that the witnesses attempting to identify him might have an unobstructed view. It was said therein, 18 Cal.2d at page 461, 116 P.2d at page 62 (citing a Texas case, Rutherford v. State, 135 Tex.Cr.R. 530, 121 S.W.2d 342) that: ‘It has been held that an order of the trial court directed to a defendant to stand up and remove his glasses was not error.’ In Crenshaw v. State, 225 Ala. 346, 142 So. 669, 671, a person who was suspected of the perpetration of a crime was required by officers to put his cap on. The court said therein: ‘That he was required by the officers to put his cap on was not requiring defendant to make evidence against himself in violation of constitutional guaranties.’ Appellant herein was not denied any constitutional right by being required to put glasses on.

Appellant also contends that the deputy district attorney was guilty of misconduct, in that, he ‘brought out that defendant's brother, ‘Jimmy,’ was arrested in connection with the offense.' Appellant quotes in his brief two excerpts from the transcript in an effort to support said contention. The said quotations do not state or indicate that one of the boys referred to therein was appellant's brother or that his brother was a participant in any crime. Appellant presented evidence of an alleged alibi, and it was proper for the deputy district attorney on cross-examination of the alibi witnesses to ask who were present at the times and places mentioned by them. When cross-examining the former wife of appellant, the deputy asked her questions which were in substance as follows: Whether appellant came to the Hitching Post Cafe with his brother, Jimmy? Whether she saw Jimmy that night? Whether she saw Jimmy when she and appellant were in front of her house? She answered those questions in the negative. There was no misconduct in such references to Jimmy or at all on the part of the deputy district attorney. This attempt to show misconduct on the part of the deputy district attorney is based, apparently, upon the fact that upon the former appeal herein the appellant's claim of misconduct—by reason of references to his brother—was upheld. The references therein, however, were very different from the incidents herein assigned as misconduct. In the former trial, a deputy district attorney requested that a man be brought into court, and thereafter when a man was brought in the judge said that somebody had been brought in from the county jail. Then the deputy asked the manager of the Clock Cafe, who was then a witness, if he recognized the man. He replied to the effect that he was the man who held him up at the cafe. On the next day, the deputy district attorney asked a deputy sheriff, who was a witness, if he knew the man who had been brought into court the day before ‘from the prisoners' room.’ After replying in the affirmative, the deputy district attorney asked him to spell the man's name. He spelled it: ‘R-o-b-e-a-r-g-e.’ The court held that by reason of the similarity of names the jury might have inferred that the man was a brother of appellant, and therefore, in view of the circumstances under which he was brought into court from jail and the positive identification of him as one of the robbers, there was prejudicial misconduct. In the present case there was no implication that Jimmy was a participant in the robbery.

The judgment and the order denying the motion for a new trial are affirmed.


SHINN, P. J., and VALLÉE, J., concur.