PEOPLE v. COBB

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. James COBB and Walter Ray Ault, Defendants and Appellants.

Cr. 5253.

Decided: February 21, 1955

Eller & Winton, Howard L. Winton, Beverly Hills, for appellant Ault. Lowell Lyons, Los Angeles, for appellant Cobb. Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

Defendants were charged by information with burglary in Count I and attempted robbery in Count II. Prior convictions of felonies were also charged against both defendants. After the trial had commenced each admitted the prior convictions. The jury returned a verdict of not guilty as to Count I and guilty as to Count II. The jury also found that defendant Cobb was armed at the time of the commission of the crime but that Ault was not armed.

The appeal is from the judgment.

A description of the offense, as recited in respondent's brief, is as follows:

‘About 8:20 p. m. on February 9, 1954 Police Officers Leonard and Hernandez went to the M & E Liquor Store at 8916 South Broadway, where they spoke to Mr. Shelton, the employee of the store, and then went to the rear of the store, behind the refrigerator, where they remained. At approximately 8:45 p. m., Cobb, followed within three or four feet by Ault, entered the liquor store. They walked up to the counter by the cash register, and Cobb asked for two packages of cigarettes. Mr. Shelton went over, picked up the cigarettes and put them on the counter in front of them. Cobb put a dollar bill on the counter, and Mr. Shelton picked it up and turned to the cash register to ring it up. Before Mr. Shelton could ring it up and give him his change, Cobb pulled out a blue steel foreign automatic pistol, pointed it at Mr. Shelton, and said, ‘This is a stick up. Raise your hands and walk to the back.’ Mr. Shelton said, ‘O.K.,’ raised his hands, turned around, and walked toward the back of the store where the refrigerator was. Cobb followed him, with his back to Ault. Mr. Shelton walked past Officer Leonard. The officer stepped out from behind the refrigerator and said, ‘Police, drop that gun!’ Cobb stopped and Ault looked over his shoulder. Cobb pointed the gun which he had in his hand at Officer Leonard, and Officer Leonard fired three shots at the men. Cobb turned and ran past Ault, and out the front door. Ault turned and ran after him. As they neared the door Officer Leonard fired two more shots, saying, ‘Stop or I'll shoot!’ Officer Hernandez aimed his gun at Ault and fired. Both Cobb and Ault ran out the door, followed by the police officers. They ran in a northerly direction on South Broadway. Officer Hernandez fired again, and Ault hesitated as if he was going to stop, but did not do so. Officer Hernandez fired another shot and Ault dropped to the ground. Cobb continued running, and turned east on Eighty-ninth Street.' Cobb was arrested shortly thereafter. Both defendants were wounded.

It is contended by defendant Ault that,

‘I

‘The court erred in not investigating a private communication between a juror and a relative of one of the codefendants.’

‘II

‘There was not sufficient proof aliunde of the corpus delicti of the crime of attempted robbery, and appellant's conviction was improperly based on an alleged extra-judicial confession.’

Defendant Cobb contends that,

‘II

‘The court erred in not declaring a mistrial on its own motion where the court had knowledge an unauthorized person had tampered with the jury.’

‘III

‘The evidence is insufficient to support the verdict. Mere suspicion is not a finding of crime.’

‘IV

‘Making an issue of Cobb's prior record before the jury where he admitted prior record was a denial of due process of law and violative of Section 1025 of the Penal Code.’

The two officers and the clerk identified the defendants. It is unnecessary to discuss the sufficiency of the evidence; that it was sufficient as a matter of law there is no question.

The failure of the court to investigate a ‘communication’ between a juror and a relative of one of the defendants. The trial judge stated,

“Yesterday when we took the recess, one of the relatives of one of the defendants spoke to one of the jurors. If there is any further repitition of that, anybody doing that is going to find themselves landed in jail. That is a criminal offense, and also a violation of the law so far as contempt of Court is concerned. If there is any more conduct on the part of the relatives of either of these defendants, any attempt to reach or talk to jurors, this Court is going to act very severely in the matter.'

‘The District Attorney added, ‘The information that I had was that apparently they knew each other because the names were called.’

‘The Court then stated, ‘That doesn't alter the situation. I'm not taking any action at this time, because it may have been a foolish rather than a vicious act, but I want to serve notice now, any more performances of that sort and we are going to take some definite action.’' That is the extent of the record. Obviously, no prejudicial error resulted from the incident. See People v. Murphy, 92 Cal.App. 729, 268 P. 927; People v. Golsh, 63 Cal.App. 609, 219 P. 456; People v. Perez, 19 Cal.App.2d 472, 65 P.2d 1319, and People v. Phelen, 123 Cal. 551, 56 P. 424.

The proof of the corpus delicti was established beyond question and the contention relating to involuntary confessions lacks support in the record.

Appellant Cobb's contentions as recited above lack support in the record and are without merit.

The court's ruling that the testimony of a character witness was inadmissible was not error. ‘To be admissible such evidence must be directed to the general reputation in the community in which the party lives or is generally known. (40 C.J.S., Homicide, § 222, p. 1141; People v. Soules, 41 Cal.App.2d 298, 306, 106 P.2d 639; People v. Griner, 124 Cal. 19, 21–22, 56 P. 625.) ‘Such evidence is properly excluded where the reputation is confined to the vicinity of his place of business or among the members of a restricted group of persons.’ (Cosler v. Norwood, 97 Cal.App.2d 665, 667, 218 P.2d 800; People v. Markham, 64 Cal. 157, 163, 30 P. 620.)' The foregoing rule is basic and the witness in the within action did not meet the test.

The reference to the conviction of prior felonies, on cross-examination, was proper.

There are no prejudicial errors in the record and the judgment is affirmed.

I concur.

However, I find myself in disagreement with that portion of the majority opinion which holds that the trial court's ruling that the testimony of a character witness was inadmissible was not error. The record reflects that by way of foundation the witness testified on direct examination that he was in the upholstering business and that appellant Cobb had worked for him off and on for the previous four years; that he knew Cobb's reputation for honesty, integrity and truthfulness, based on his own opinion and discussion of his reputation by men who worked for him; that he had discussed Cobb's reputation with such other persons when he hired him; that he knew Cobb's reputation for the traits involved; that the persons with whom he talked were mostly upholsterers who lived in Los Angeles and worked with him and Cobb off and on; that he based his opinion on the conversations and his knowledge of Cobb's general reputation in the community; that the persons with whom he talked resided in the general community itself; and that he knew the general reputation of Cobb in the community for honesty and integrity and truthfulness, based upon discussion about that general reputation in the community about four years previously when he hired him, and on and off since. On voir dire the witness testified that he knew nobody who lived in Cobb's neighborhood; that his only contact with Cobb was that he was an employee, and through the men in the shop; that he had not talked about Cobb's reputation with anybody outside of the men in the shop; that he knew of Cobb's reputation at the shop, but outside of that they never had anything in common; that he mostly talked with people at his place of business, and might have talked to people out of the building where his shop was, but they were people connected with the business; that he had talked to eight or ten people who resided in the community about Cobb within the previous four years, and they discussed Cobb's general reputation in the community for the traits involved; that not all of those eight worked in the shop, but four or five did not work for him; that he based his opinion on the discussion with those people of the general reputation of Cobb in the community, and that he knew Cobb's general reputation in the community.

The Court refused to allow the witness to testify as to Cobb's general reputation in the community for peace, quiet, honesty, integrity and truthfulness.

Respondent seeks to justify the correctness of the court's ruling because, ‘We submit that here clearly any knowledge which the witness might have had of the reputation of Cobb was not knowledge of his general reputation in the community where he lived or was generally known, but was, rather, reputation in the vicinity of Cobb's place of business and among people connected with the business.’ (Emphasis added.)

I am satisfied that the ruling was erroneous. Respondent relies on the case of People v. Carnavacci, 119 Cal.App.2d 14, 17, 258 P.2d 1121, 1123, wherein it is stated that ‘To be admissible such evidence must be directed to the general reputation in the community in which the party lives or is generally known. 40 C.J.S., Homicide, § 222, p. 1141; People v. Soules, 41 Cal.App.2d 298, 306, 106 P.2d 639; People v. Griner, 124 Cal. 19, 21–22, 56 P. 625. ‘Such evidence is properly excluded where the reputation is confined to the vicinity of his place of business or among the members of a restricted group of persons.’ Cosler v. Norwood, 97 Cal.App.2d 665, 667, 218 P.2d 800, 801; People v. Markham, 64 Cal. 157, 163, 30 P. 620.'

We are persuaded that the true and correct rule is that stated in People v. Derrick, 85 Cal.App. 406, 409, 259 P. 481, 482, as follows: ‘In this age of rapid transit and quick communication it is not only conceivable, but a matter of common knowledge, that business men may acquire no reputation one way or the other in the community in which they actually reside, and bear an excellent reputation miles distant where they follow their daily vocations and come in contact with many associates. People v. Schmidt, 79 Cal.App. 413, 249 P. 832 [250 P. 1104]; see, also, State v. Henderson, 29 W.Va. 147, 1 S.E. 225, 240; State v. Cushing, 14 Wash. 527, 45 P. 145–147, 53 Am.St.Rep. 883. Any other view would prevent many eminent citizens from proving well-earned reputations.’

Nor can there be any doubt about the well known rule regarding evidence that the fact that the character or reputation of a person in the community in which he resides has not been discussed nor questioned is cogent evidence of the person's good character and good reputation. People v. Adams, 137 Cal. 580, 70 P. 662; People v. Stennett, 51 Cal.App. 370, 197 P. 372.

However, in the case now engaging our attention I am satisfied that a reversal cannot be ordered because after a reading of the entire record, including the testimony, I am persuaded that a miscarriage of justice has not resulted. Constitution of California, Article VI, Section 4 1/2. The error was therefore not prejudicial, and in view of the overwhelming evidence of appellant Cobb's guilt, the erroneous ruling could have had little, if any, effect in the determination of the jury.

DORAN, Justice.

DRAPEAU, J., concurs.