People v. Thomas

The defendant, Guy Thomas, appeals from a conviction of robbery. He was accused jointly with Edward Perona and John Carston by a complaint filed in the justice’s court with having robbed William L. Douthett. Perona and Carston were held to answer on October 11, 1940, and an information filed against them in the superior court. Thomas, having been arrested later, was held to answer on October 14, 1940, and a separate information filed against him wherein he was charged also with three prior convictions of felony. All pleaded not guilty to the charge of robbery, and Thomas admitted the prior convictions. Thereafter it was ordered that the informations be consolidated for trial; however, prior to the date of trial a lesser charge was placed against Carston, to which he pleaded guilty, and as to him the charge of robbery was dismissed. The trial of Thomas and Perona took place before a jury, and they were found guilty of robbery in the first degree. Each was sentenced to imprisonment in the state prison for the term provided by law; but it having been disclosed at the trial by the cross-examination of Perona that previously he had served a portion of a penitentiary sentence for robbery and was then on parole, it was ordered that his sentence run concurrently with the one imposed for the prior conviction. Both appealed, but Perona afterwards abandoned his appeal.

In support of the appeal taken by Thomas it is contended that the evidence is legally insufficient to sustain the conviction. Admittedly, however, on vital points, the testimony is conflicting; and since the jury resolved all conflicts against appellant, its verdict is controlling on appeal. The facts of the case as they were established by the prosecution were as follows: Douthett was a travelling engineer for Aluminum Company of America, and had been in its employ for many years. He drove into Salinas in his car on the morning of October 10, 1940, and about 4 o’clock that afternoon visited the Subway Liquor Store, wherein, after having two drinks with friends, he picked up an acquaintanceship with Thomas, Perona and Carston, all of whom lived in or near Salinas. Thomas had been working at odd jobs in cafes in Salinas; and Carston was a floor worker in a lettuce plant. The kind of employment Perona followed does not appear. The three men had been drinking during the day, and after Douthett joined them in the liquor store he bought

Douthett’s testimony as to the circumstances attending the robbery was corroborated by that of Carston, who was called as a witness for the prosecution. He testified that after starting on the ride they passed around the bottle they had with them, and that on the way back from Port Ord Douthett and Perona became involved in an argument, during which mention was made of “two guns”; that about that time the car was stopped and Perona got out, and that Douthett started to get out but Thomas grabbed him and pulled him back; that someone said “hit him”, and believing there was going to be a fight in which there might be some shooting, he, Carston, drew from his hip pocket a blackjack, made out of a short piece of rubber hose wrapped with friction tape at one end and an iron bolt inserted in the other, and struck Douthett over the head with it; that Douthett still tried to get out of the car, but Thomas held him back, and he, Carston, struck Douthett a second blow on the head with the blackjack; that blood started running down Douthett’sface, and turning to Carston Douthett asked what had happened ; that thereupon Douthett succeeded in getting out of the car, and Thomas followed; that Perona was already out of the car, and that he then saw Thomas and Perona go up to Douthett as he stood in the roadway, go through his pockets and thereupon search the trunk of his car, after which Perona said, “Come on, let’s get out of here”; that Thomas and Perona then got back in the ear, and leaving Douthett in the roadway they drove back to Salinas, parked the car near the liquor store, and shortly afterwards separated. Carston further testified that after leaving Douthett and before reaching Salinas Thomas again stopped the car, got out, and taking Douthett’s valise from the tonneau of the car said he was going to make a telephone call; that he was gone about five minutes and returned without the valise; that afterwards "when they got out of the car near the liquor store Thomas had Douthett’s wallet in his hand, and started to throw it in the street, but at Perona’s suggestion it was thrown on top of the building. Carston stated that he .was carrying the blackjack for his own protection; that he had been threatened with violence by the divorced husband of a woman with whom he was keeping company.

Thomas’ version of the affair was that on the way back from Port Ord Douthett became quarrelsome and wanted to fight with Perona; that he, Thomas, tried to pacify the two of them, but was unable to do so; that finally at Douthett’s request he stopped the. car and Perona got out, presumably to fight; that Douthett started to get out too, saying something about having two guns he would use if he was unable to whip Perona with his fists; that fearing someone might get shot he tried to prevent Douthett from getting out of the car, and that without any suggestion from anyone Carston struck Douthett over the head twice, cutting his head, after which Douthett succeeded in getting out of the car. Continuing, he stated that in order to prevent further violence he got out too, and told Douthett to get in the car and behave himself, but that Douthett refused to get back in the car, whereupon he,' Thomas, searched the trunk of the car to find out whether Douthett carried any guns; but none was found. Meanwhile, so Thomas testified, Douthett disappeared down the road; that they spent a few minutes trying to locate him and that he then told Perona to get back in the car and they would drive it back to Salinas and leave it where they found it; that as he got out of the car near the liquor store he picked up Douthett’s wallet from on the seat of the car and started to throw it in the street, but at Perona’s suggestion it was thrown on top of the liquor store. He denied having told Douthett that it was a “stick-up” or to throw up his hands, or having at any time gone through Douthett’s pockets or taken anything from his person or his " ear.

It is apparent that at best the testimony so given bjr Thomas and Perona does no more than create a conflict with that given by Douthett and Carston; therefore, under well settled rules, the conclusion reached by the jury upon the issue of whether there was a robbery is conclusive on appeal. It is true that at the time this happened Carston and Perona were very much intoxicated; that Thomas was more or less under the influence of liquor, and that Douthett had been indulging quite freely. But the record shows that although Douthett was subjected to a rigid and thorough cross-examination, first by counsel for Thomas and then by counsel for Perona, his recollection as to what occurred that afternoon and evening was neither vague nor uncertain; nor was anything disclosed thereby which would justify this court in holding as a matter of law that Ms story of the robbery was inherently improbable. Obviously the jury, as evidenced by its verdict, was convinced of the truth of his testimony, and since it is the sole judge of the credibility of the witnesses and the weight to be given to their testimony its determination of the disputed issue of fact is controlling.

It was alleged in the information that by means of force and fear the defendants took from Douthett “lawful current money of the United States, a leather wallet, a valise”, and his automobile; and appellant argues that the evidence fails to show any intent to steal the automobile or

Appellant assigns as error the trial court’s ruling denying his motion to set aside the information upon the ground that he had not been legally committed by a magistrate. So far as the record shows, no evidence was introduced by appellant to establish the facts upon which he based the motion, and it is held that in the absence of supporting evidence it is not error to deny such a motion. (People v. Hinshaw, 194 Cal. 1 [ 227 Pac. 156 ] ; People v. Williams, 84 Cal. 616 [ 24 Pac. 145 ].) However, when the motion was made the district attorney in opposing the same in effect conceded the existence of the facts relied on by appellant, which, briefly stated, were these: At the time appellant’s preliminary examination was held on October 14, 1940, the complaint theretofore filed before the magistrate accusing the three men jointly of robbery and upon which the warrants of arrest issued was on file in the office of the county clerk; for that reason the order of commitment made by the magistrate holding appellant to answer was attached to a true copy of the complaint, rather than being endorsed on the original; and thereupon said documents were filed with the county clerk. This procedure was followed because the order made by the magistrate on October 11, 1940, holding Pcrona and Carston to answer had been endorsed on the original complaint in accordance with the provisions of section 872 of the Penal Code, and the complaint then forwarded to the county clerk for filing. Appellant was at all times represented by counsel, and no objection was made against proceeding with the examination without having the original

Appellant contends that the provisions of section 954 of the Penal Code do not authorize the consolidation of

On the day of trial the court expressed the opinion that in consummation of the order of consolidation the district attorney should file an amended consolidated information, and this was done. These proceedings took place after the jury had been selected but before it was sworn; and upon the filing of the consolidated information the court stated: “ ... I take it, it is not necessary to . . . arraign them again . . . ”; thereupon, and without objection on the part of appellant the court proceeded with the trial. Appellant now contends that because he was not re-arraigned the trial was illegal. We disagree with this contention. The consolidated information was simply a combination of the two separate informations theretofore filed against appellant and Perona. The charge of robbery made therein was in language identical with that set forth in the separate informations ; and the allegations of the prior convictions were exactly the same as those made in the separate informations filed against appellant. Upon those separate informations appellant and Perona had been duly arraigned and entered their pleas of not guilty, and at that time appellant admitted the prior convictions; and that appellant acquiesced to the view expressed by the court that the arraignment of the defendants under the separate informations was legally sufficient for all

It appearing, therefore, that none of the assignments of error constitutes grounds for reversal, the judgment of conviction and the order denying the motion for new trial are affirmed.

Peters, P. J., and Ward, J., concurred.