PEOPLE v. WILLIAMS

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District Court of Appeal, Fourth District, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. James Lawrence WILLIAMS, Defendant and Appellant.

Cr. 888.

Decided: May 23, 1955

L. Kenneth Say, Fresno, for appellant. Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.

The defendant was charged with the commission of an armed robbery, and also with a prior conviction. He pleaded not guilty but admitted the prior conviction. He was found guilty by the verdict of a jury, and he has appealed from the judgment sentencing him to prison. He was represented at the trial by an attorney of his own choosing, and the same attorney was appointed by this court to represent him on this appeal.

The evidence shows, without conflict, that two men robbed a service station in Fresno about 10:00 P.M. on June 25, 1954. The service station was operated by a Mr. Voss and his wife, both of whom were present at the time. One of the men handed a half dollar to Mrs. Voss and asked for change with which to operate a cigarette machine. When she handed him the change the other man produced a gun and threatened to kill both Mr. and Mrs. Voss if she did not open the cash box for them. The box was opened and the smaller of the two men grabbed the bills in the box. About that time Mr. Voss ran behind a tire rack for the purpose of getting his gun. The two men then fled. On a check being made it was found that $62 had been taken. The defendant was arrested about a week later but the other man was not apprehended. At the trial both Mr. and Mrs. Voss identified the defendant as the one who had taken the money. The defendant testified that on the night in question he was playing cards at his home continuously from about 8:30 P.M. to midnight, and that he had not been at the service station. His common law wife also testified that he was at home that night between those hours.

The only point raised is that the only identification of the defendant as a participant in the robbery is that appearing in the testimony of Mr. and Mrs. Voss, and that a reasonable doubt exists as to that identification. There is evidence that the defendant was only five feet three inches tall, that he had a mark on his face, and that his appearance was unusual in several respects. Both Mr. and Mrs. Voss, at separate times, picked the defendant from a police line-up of five men and identified him as being one of the men who held up the station. An officer testified that the five men in the line-up were about the same size. Both Mr. and Mrs. Voss positively identified the defendant at the trial, as being one of the men in question, and gave good reasons for being positive. The appellant argues, however, that some doubt exists from the fact that although Mrs. Voss positively identified the defendant at the preliminary examination and at the trial, the probation officer in making his report included this statement: ‘Mr. Voss was very positive and had no doubts, while Mrs. Voss was a little reluctant on the positive identification due to the fact that Williams has a thin mustache which she did not remember.’ The probation officer's report is not in the record. If such a fact had been brought out at the trial it would have gone to the weight of her evidence, and nothing more than a conflict would appear. The evidence was amply sufficient to support the verdict, including the matter of identification.

The judgment is affirmed.

BARNARD, Presiding Justice.

GRIFFIN and MUSSELL, JJ., concur.