People v. Dean

This is an appeal by the defendant Robert G. Dean, from a judgment entered upon a verdict of a jury finding him guilty of robbery.

Briefly, the facts are as follows: Robert G. Dean and Joseph A. Neff were living together in Oakland prior to February 5, 1923, the date of the crime for which defendant was convicted. During the early part of January, 1923, Dean spoke to Neff about the commission of some crime, without discussing any details. The substance of this conversation, as testified to by Neff, was as follows: “He said that he had met a friend of his that knew of a job, as he called it, to he pulled, but that they would not be able to do it because they had to have another party and wanted to know if I would consider taking part in it and I admitted I did and it was dropped then for the period -of

[1] Appellant’s first attack is upon the information, which read, in part, as follows: “The said Joseph A. Neff and Robert G. Dean, hereinafter called the defendants, 'prior to the time of filing this information, and on or about the 5th day of February, 1923-, in the said county of Alameda, State of California, did, unlawfully, wilfully, feloniously and by means of force and fear and against the will of Albert Lohman and Louis Micotti, take, steal and carry away from the personal and immediate presence of said Albert Lohman and Louis Micotti, the following described personal property, to-wit, Two Thousand Forty-two Dollars and twenty-five cents ($2,042.25) in lawful money of the United States and two keys, which said personal property was then and there in the possession of said Albert Lohman and Louis Micotti, and the personal property of the Oakland-San Francisco Theatre Company, a corporation, organized and existing under and by virtue of the. laws of the State of California, and which said personal property was then and there of the value of $2042.25 in gold coin of the United -States of America.”

]2] It is contended that the court should have instructed the jury that if it was not satisfied that the crime of robbery had been committed, but was satisfied that grand larceny had been committed, it was their duty to find the defendant guilty of the latter offense. This contention is based upon the appellant’s position that the evidence showed the offense to have been grand larceny rather than robbery, because of an alleged absence of proof that Lohman and Micotti were in possession of the money taken by defendant and his confederates. But the record contains testimony that Lohman and Micotti were janitors and watchmen; that, in addition to their duties as janitors, they were charged with the custody, protection and safeguarding of the State Theater, which was conducted by the Oakland-San Francisco Theater Company, and of everything contained in and about the premises of said theater. Lohman testified that he was “night janitor and watchman’’; that he had access to all the rooms of the theater and had keys to all of them, including the office from which the money was taken. He also testified that he was instructed by the manager, Mr. Holtz, to watch the building and to let nobody in after the show was over, and that at the time he was engaged to work at the theater, his employer, Mr. Frantzen, instructed him that he was to act as watchman in addition to doing janitor work. Micotti testified that he was the day janitor and watchman; that, he had been working as such at the State Theater for about two years; that when he first began this work he was told by Trig employer, Mr. Frantzen, foreman of the American Building Maintenance Company, and by the manager and as

While these-men did not own the money, nor even knew the amount in the safe, yet thej were rightfully in possession of the theater and its contents at the time of the robbery and were entitled to this possession as against the defendant.

In O’Donnell v. People, 224 Ill. 218 [8 Ann. Cas. 123, 79 N. E. 639 ], the charge was assault with intent to rob. Dorgan, the person assaulted, was a watchman in charge of a railroad station. The statute in- that state defined robbery as “the felonious and violent taking of money, goods or other valuable thing from the person of -another by force or intimidation.” It was contended that Dorgan did not have such possession of the property in the station as to come within the above definition of the crime of robbery, and that since there could not have been a completed crime of robbery, there was no crime of assault with intent to rob. It was held that Dorgan had sufficient possession as against the defendant of all the station contained to bring the offense within the definition of attempted robbery.

In the case of Brooks v. People, 49 N. Y. 436 [ 10 Am. Rep. 398 ], the house was left in charge of a girl eleven years of age. Defendant entered the house, held a pistol to the girl’s head and took her father’s property from a trunk. It was held that the child had such possession of the property as to satisfy the requirements of the definition of the crime of robbery.

In the case of Reese v. State, 91 Tex. Cr. 457 [ 239 S. W. 619 ], it was held that a railroad employee who worked as a telegraph operator and ticket agent at a railroad station during the night, had “possession” of the contents of the safe in the office which was locked, and to which he did not have the combination, within the meaning of the word “possession” as defined in the crime of robbery.

Complaint is made of the refusal to give certain instructions at the request of the defendant, but we find no merit in any of these specifications of error. Most of the instructions refused were .substantially given in other instructions given by the court, and the charge to the jury, as a whole, appears from the record to be full and fair to the defendant in every respect.

[4] It is contended that evidence of the movements and activities of Dean, Neff and Carroll after they left the theater was improperly admitted. This- evidence consisted of the testimony of Neff, one of the conspirators. It is maintained by appellant that although the testimony of one conspirator is admissible against other conspirators with regard to matters and things done in furtherance of the conspiracy, nevertheless, the conspiracy in this case was ended when the robbery was completed and any further inquiry into the activities of the conspirators was erroneous. It would seem to us that the conspiracy was not ended until the spoils had been divided, and if this be the rule, the testimony was properly admitted. But, however that may be, the outstanding fact upon this appeal is that the judgment in this case has done substantial justice. The record leaves no reasonable doubt of the defendant’s guilt, quite 'apart from any testimony to which any objection is made. He was positively identified as one of the men who committed the robbery by one of the watchmen and by the plumber, Fitzgerald, both of whom were in the theater at the time of the robbery and saw the defendant’s participation in it; and it is certain that the testimony of these witnesses, together with the portion of Neff’s testimony which was admissible beyond all question and the many other facts and circumstances appearing in the record uncontradicted, overwhelmingly convict the defendant, and the jury could have brought in no other verdict than it did. In this state of the record it is idle to consider in detail the numerous contentions of defendant with regard to the admission of evidence. If any errors occurred in

The judgment and orders appealed from are affirmed.

Sturtevant,. J., and Nourse, J., concurred.