PEOPLE v. BRAUN (1939)

An information was filed against defendant, charging him with the crime of robbery and with having been previously convicted of a felony and having served a term of imprisonment therefor in the Illinois state penitentiary, to which the defendant entered a plea of not guilty to the charge of robbery and admitted the prior conviction.

After a trial by a jury, defendant was found guilty of the crime of robbery of the first degree, and now prosecutes this appeal from the judgment based thereon and from an order denying his motion for a new trial, claiming insufficiency of the evidence and prejudicial misconduct on the part of the district attorney.

Epitomized, the facts are that early on the morning of January 31, 1938, three men entered the United Independent Dairies in the city of Los Angeles, armed with deadly weapons, and held up three employees of the concern, obtaining from Kenneth Weston, one of such employees, the sum of thirty dollars in cash and other personal property.

At the trial one of the victims of the robbery positively identified the defendant as one of the participants in the robbery. In the record we find the following:

“Q. Now, I will ask you to look around this courtroom and tell me if you see the man that came in there on this particular morning, the man with the rifle? A. Yes, sir.

“Q. Where is he, please? A. He is right there at the table.

“Q. Indicating the defendant, Braun? A. Yes, sir.

“Q. Now, after the defendant Braun came in with a rifle, what if anything did he do or say? A. He didn't say anything.

“Q. All right. What was the next thing that took place when the defendant Braun came in? A. Well, Braun stayed in there with the rifle while I was on the floor. He stayed in there with me and there was another man that came in too, and they went in the back room and brought in one of the other boys that worked there at the dairy, at the creamery. *

“Q. Now, Mr. Weston, calling your particular attention to the defendant, George Braun, did you notice anything in particular about him on the night of the robbery, so as to make your identification positive at this time? A. Yes, his size and his gray hair around the temples and at the time—well, after the holdup, I kept thinking that there was something that I should remember about him. I couldn't just think what it was though, and in the meantime the deputy sheriff had been showing me numerous pictures of suspects, and as soon as they showed me the pictures, why I picked it out right away because he had a scar on his nose, and I felt sure that that was what I should have remembered about it.

“Q. Now, at the time that you picked this defendant out of these photographs, his picture, about how many photographs did you look at?

“Mr. Jonesi: I object to that as not material, if your Honor please.

“The Court: Overruled. Answer the question.

“A. Oh, approximately 30 or 40.”

Supporting the powers of observation on the part of the witness Weston, we quote from the reporter's transcript of his testimony in connection with the identification of Harry Groves, who admitted being one of the robbers, as follows:

“Q. And then you saw Mr. Groves in the room? A. Yes, sir; that is right.

“Q. Do you see Mr. Groves in the courtroom now? A. No.

“Q. Would you know Harry Groves if you should see him? A. Yes, sir.

“Mr. Jonesi: May I ask the Court's permission to have Mr. Groves brought into the courtroom?

“The Court: Yes. (Harry Groves brought in by bailiff and stands at end of counsel table.)

“Q. By Mr. Jonesi: Is that the man you say you saw at that time? A. Yes.

“Q. And that is Harry Groves? A. Yes, sir.”

Concerning his opportunity to observe, form impressions of, and identify the defendant, this same witness gave the following testimony:

“Q. At the time that you say that you saw him” (referring to defendant, Braun) “enter, could you see his whole person? A. Yes, he came and stood right at the desk, right beside me. He was in there altogether approximately 15 minutes, I guess.

“Q. Now, how far were you from that desk? A. Oh, three or four feet, four or five feet, not more than five feet.

“Q. How far was Mr. Braun from the desk? A. He stood between the desk and me.

“Q. In other words, he was about one or two feet from you? A. Well, about three feet from me, I should say.

“Q. And at that time you got a good view of him? A. I didn't get as good a look then as I did when they had me get up to open the safe, or try to open the safe the second time, and then they had me lay down in another place.”

The two other dairy company employees who were present at the hold-up also identified appellant, although their identification was not as positive as that of the witness Weston, but their opportunity for identification was not as good as was afforded Weston. But notwithstanding their hesitancy to positively identify appellant on occasions preceding the trial, they did nevertheless at the trial persist in their claim that appellant was one of the robbers.

Notwithstanding the foregoing testimony, it is earnestly urged that appellant is the victim of mistaken identity, in connection with which it is argued that the identification of appellant is uncertain and unsatisfactory. This argument is inspired by the fact that the robbery took place at 4:30 o'clock in the morning, when it was still dark; that the victim Weston was hit on the head and made to lie down; that shortly after the robbery the witness Weston, in a conversation with deputy sheriffs, described the robbers as being foreigners and otherwise different in appearance from the defendant. Further, that the robber identified as the defendant wore a muffler over a part of his face, thus rendering invisible his countenance, except from the upper lip to the eyebrows, and that he wore a hat that obscured part of his face. Appellant predicates further infirmity in the identification upon the fact that two of the robbers who admitted their part in the hold-up took the witness stand at the trial of appellant and swore positively that the latter had no part in the robbery and was not present thereat; and finally, that appellant as a witness in his own behalf asserted his innocence.

As to the testimony offered in opposition to the identifying witnesses, it has been frequently held that a conflict in the evidence as to the identity of one on trial accused of having committed an offense presents a question solely within the province of the jury, and their conclusion may not be disturbed on appeal. People v. Seawright, 72 Cal.App. 414, 237 P. 796. The witnesses for the prosecution were entitled to full credit, and apparently from the verdict of the jury, they believed their testimony. Before an appellate court can disturb the finding of the trial court on such a question, the testimony proffered by the people as to the identity must be so weak as to constitute practically no evidence at all to support the identification. People v. Farrington, 213 Cal. 459, 2 P.2d 814; People v. Friday, 18 Cal.App.2d 197, 63 P.2d 303. The testimony in the case at bar cannot be thus strictured. While the alleged variances or inconsistencies in the testimony undoubtedly afforded opportunity for a persuasive argument to the jury against the reliability of such testimony, we find nothing in the evidence from which a reviewing court could justly conclude that the testimony of these witnesses is per se unbelievable and that it was therefore the jury's duty not only to disregard it, but to accept defendant's denial of any wrongdoing on his part and the testimony of other witnesses in his behalf that he was not present at the time of the commission of the offense. Reviewing judges are, obviously, in no position to determine the credit which should be accorded to witnesses or to weigh their testimony. Undoubtedly for that reason our Constitution, art. 6, § 41/212, provides that the appellate courts are not authorized to review evidence, except when on its face it may justly be held that it is insufficient to support the ultimate issue involved, in which case it is not a review of a question of fact, but purely one of law. People v. Haydon, 18 Cal.App. 543, 553, 123 P. 1102, 1114. Carrying out the spirit and intent of this constitutional provision, the legislature has ordained that the jury are the exclusive judges of the credibility of witnesses (Code Civ.Proc. § 1847), and are the judges of the effect and value of evidence addressed to them, except in those instances where it is declared by law that it shall be conclusive. Code Civ.Proc. § 2061. It necessarily follows from the rules just stated that the jury in this case were authorized, if they conscientiously felt warranted in so doing, after full and fair consideration thereof, to reject any testimony which might have been contradictory to that of the witnesses who testified for the people (People v. Phelan, 123 Cal. 551, 557, 56 P. 424; People v. Wright, 4 Cal.App. 704, 706, 89 P. 364; People v. Turpin, 10 Cal.App. 526, 530, 102 P. 680; Clark v. Tulare Lake Dredging Co., 14 Cal.App. 414, 432, 112 P. 564), and therefore to disbelieve the testimony of the defendant and witnesses corroborative thereof and accept that of other witnesses in contradiction, however weak in places the testimony of the latter may have been made to appear, or however seriously their testimony on other important points might have conflicted with the testimony of defendant's witnesses.

Appellant's claim that the testimony of the prosecution's witnesses identifying the former as a participant in the robbery was so inherently improbable as to constitute no evidence at all, finds its answer in the case of People v. Haydon, supra, where, at page 555, 123 P. at page 1108, the court said: “A statement, to bear upon its face the brand of improbability, or which may be said to be unbelievable per se, must involve, we think, a claim that something has been done that it would not seem possible could be done under the circumstances described, or involve conduct that no one but a person of a seriously calentured mentality would be likely to do.”

The second point urged by appellant for a reversal is that his rights were prejudiced by asking him a certain question on cross-examination. In that connection, the record discloses the following:

”Q. Isn't it a fact, Mr. Braun, that you have been convicted of the crime of murder, arising out of a robbery at the Bee Hive Cafe?

“Mr. Jonesi: I object to that, your Honor, as incompetent, irrelevant, and immaterial, and it is also improper cross-examination.

“The Court: Reframe your question and ask him if he has been convicted of a felony.

“Q. By Mr. Galliano: Isn't it a fact that in the last part of July of this year you were convicted of the crime of murder? A. I will not know until I hear from my appeal.

“Mr. Jonesi: Just a minute; I object to that as improper cross-examination, and having no bearing upon this case.

“Mr. Galliano: I have a right to impeach this witness, if your Honor please.

“Mr. Jonesi: It is not proper impeachment.

“The court: I will overrule the objection.

“Q. By Mr. Galliano: Just answer the question, Mr. Braun. A. What is that?

“Q. Isn't it a fact that you have been convicted of the crime of murder in the first degree? A. Yes, sir.

“Q. And isn't it a fact also that you have been convicted of the crime of attempted murder? A. Yes, sir.”

Inasmuch as the trial court in effect sustained the objection of defense counsel to the question and it was never answered, but was reframed in a manner in no wise objectionable, we cannot conceive how the asking of the question in the first instance prejudiced any substantial rights of appellant. Moreover, no assignment of misconduct in the asking of this question was made at the trial, nor was the trial judge requested to admonish the jury to disregard the question as originally asked; and consequently the matter is not open to review upon appeal. It is only when the action or conduct complained of is of such a character that no admonition to the jury would have removed its effect, if any, that the absence of an assignment of error during the trial will not preclude one from raising the point on appeal. The present case does not come within the exception. People v. Russo, 133 Cal.App. 468, 474, 24 P.2d 580.

Finally, appellant urges a reversal on the ground that the district attorney was guilty of prejudicial misconduct when on cross-examination he asked the defendant whether he had theretofore been convicted of robbery, when in truth and in fact the conviction was for the crime of rape. No objection was made to this question, nor was any request made to the trial judge to admonish the jury in regard thereto. In fact, appellant answered the question in the affirmative. If the interrogatory was asked in the form indicated by the transcript, it apparently made little if any impression upon either the appellant or his counsel, the former of whom answered it, and the latter of whom made no objection thereto.

The following extract from the record affords the basis for the final claim by the appellant of prejudicial misconduct on the part of the district attorney:

“Q. Mr. Braun, you spent the day of the 31st of January with Mrs. Kessler, is that right? A. Mrs. Kessler and Mr. Woodson and Mrs. Gerber.

“Q. Please answer my questions and do not volunteer any information. You spent the day with Mrs. Kessler? A. Yes, sir, I did.

“Q. And she runs the Spanish Kitchen on East 1st Street? A. She did at one time.

“Q. And that is a hang-out for ex-convicts?

“Mr. Jonesi: I object to that as incompetent, irrelevant and immaterial and not proper cross-examination.

“The Court: I will sustain the objection, and I will admonish the jury to disregard the statement of the District Attorney, the Deputy District Attorney.

“Mr. Galliano: I will withdraw it, if the Court please.”

Objection to the improper question was promptly sustained, and without any suggestion from defendant's counsel the court nevertheless admonished the jury to disregard the same. We cannot assume that such admonition was ignored, and certainly the particular interrogatory complained of was not of such character that the prejudicial effect, if any, involved in the asking thereof could not be removed from the minds of the jury by the appropriate admonition given by the court.

The record shows that at all times the learned trial judge was alert in seeing that the trial was fairly conducted and that appellant was accorded all his legal rights. In fact, the judge in the trial court was extremely liberal in allowing appellant great latitude in the cross-examination of the witnesses for the prosecution, particularly with reference to their testimony concerning identification of appellant. From our examination of the record, we are impressed that appellant received that fair and impartial trial which the law allows him, and we cannot say that the verdict has resulted in a miscarriage of justice.

The judgment and order are therefore affirmed.

WHITE, Justice.

We concur: YORK, P.J.; DORAN, J.