People v. Johns

Defendant and appellant Henry Lee Johns was originally charged jointly with defendant Hiram Goodwin with the crime of robbery. It is alleged in the information that on September 10, 1944, they did unlawfully “take personal property, to wit: gasoline ration coupons, and approximately twelve (12.00) Dollars, lawful money of the United States from the person and immediate presence of Doyle W. Copeland, said coupons and money being then and there in the possession of Doyle W. Copeland, and said taking being against the will of Doyle W. Copeland and accomplished by means of force and fear.” Defendants were duly arraigned on the charge. Defendant Johns’s attorney demurred to the information and moved to set it aside on the grounds that the facts stated therein did not constitute a public offense, did not comply with sections 950, 951 and 952 of the Penal Code, and that the evidence taken at the preliminary examination was insufficient to hold the defendants to answer on the charge specified. The motion was denied and the demurrer overruled. A motion was made by defendant Johns for a separate trial. This motion was also denied. Defendant Floyd Tatum was later charged in a separate information with the same crime growing out of the same claimed robbery. It alleged the robbery to have occurred on September 11, 1944. After his arraignment and plea of not guilty the district attorney moved to consolidate the two eases for trial. The motion was granted. On the day of the trial the district attorney moved to amend the information to change the alleged date of the robbery from the 10th to the 11th day of September. Over objections, the court ordered the information amended. Counsel for Johns then moved to continue the matter for the purpose of again filing a motion to set aside the amended information

After trial, the jury returned a verdict of guilty of robbery of the second degree as to defendants Johns and Goodwin and a verdict of not guilty as to defendant Tatum. Defendant Johns appealed.

The charge against the defendants was for the same crime, committed on the same day, and all growing out of the same transaction. Section 954 of the Penal Code vests in the trial court the discretion of ordering consolidated for the purpose of trial two or more indictments where the offenses are of the same class.

In People v. Aguinaldo, 3 Cal.App.2d 254 [ 39 P.2d 505 ], it was held that a consolidation of two separate informations against different defendants was error but that the error was one of procedure and therefore section 4% of article VI of the Constitution had application. That case was followed by People v. Shepherd, 14 Cal.App.2d 513 [ 58 P.2d 970 ], which case involved different defendants separately charged with the same offense. There, no objection to the consolidation of the trials was made and the appellate court reached the same conclusion. Assuming the objection here made to be in proper form, it comes too late to be considered on this appeal. The objection was first made 3% days after the trial had commenced. It is urged that since defendant Tatum elected to take the stand and testify, and because statements made by Tatum to the officers and court reporter were admitted in evidence, which statements involved the other defendants in the case, it was error to consolidate the cases. The trial court, on five different occasions, admonished the jury that any statements made by a defendant, not in the hearing

The next point involves the sufficiency of the evidence to support the verdict and judgment. We will therefore give a résumé of the facts established by the evidence supporting the verdict.

The complaining witness, Copeland, testified that he had worked for an oil company as truck driver; that on September 11, 1944, he made deliveries to a Mr. Wallace of gasoline and received “T” and “R” ration stamps therefor. Twenty-six “R” stamps were identified as being a part of the stamps received, which bore Wallace’s signature. He then testified that a “C” ration book was personally issued to him; that on that day he went to Cheekies Cafe at about 8 p. m. and that he had not checked in the ration tickets which he obtained from Wallace but that he had them with him in his wallet in his hip pocket; that he had with him other ration stamps representing six or seven hundred gallons, consisting of “A,” “T” and “R” stamps; that he went into Cheekies Cafe and had a beer and while drinking it he talked to a man whom he did not know but identified him as being the defendant Johns; that he bought Johns a.beer and took the money out of his wallet where the coupons were; that he and Johns then left Cheekies Cafe and went to Danny’s Cafe, arriving there about 9 p. m.; that while there both men went out and sat in a car owned by Floyd Tatum; that in this ear was Copeland, Johns, and Tatum; that Johns and Tatum wanted to buy some gasoline coupons and that he told them if they would buy him a drink he would sell them some; that Johns thereupon went into the cafe and brought out a glass of wine which the witness consumed; that he then told Johns and Tatum that he would have to have another drink before he would sell any stamps; that an argument then ensued and he stated that if they were going to argue all night he was going home; that he then got out on the right-hand side of Tatum’s ear and walked over to

A police officer testified that he saw Copeland at 10 o’clock in the evening at the police station on September 11; that when he saw him there were blood marks on the front of his shirt and his upper lip was swollen quite a bit; that there were marks of blood on the end of his nose and a couple of scratches on his face.

Another officer testified that he went over to Danny’s Cafe in the police car and rode around in the vicinity; that he saw a maroon colored ear traveling toward them containing the numbers and letter of 1-T 12; that he commanded the car to stop but instead of stopping it speeded up and continued south for a distance of 40 yards; that it then turned into an

One officer testified that Johns turned to Copeland and out of a clear sky said; “You know I wasn’t the one that hit you. You know Damn well I didn’t hit you”; that after arriving at the police station all of the parties left the car and went inside; that Johns was searched and there was taken from his left-hand shirt pocket a gasoline ration book which was issued to Copeland; that after the officer took the gasoline ration book, Copeland looked at it and said, in Johns’s presence: “This is my gas ration book, my personal coupon book”; that Copeland then looked at Johns and said: “You said you weren’t up there, you didn’t have anything to do with this . . . what are you doing with my gas coupon book in your pocket?”; that to this accusation Johns did not say a word. The officer testified that in his opinion, when he saw Copeland, that Copeland was sober. After the ration book was found on Johns’s person, an officer testified that Copeland said in Johns’s presence that Johns was the man who struck him three times; that when this accusation was made Johns did not reply to the statement.

Another police officer testified that when he went to the home of Tatum he told Tatum that he was wanted on suspicion of being involved in a strong-armed robbery; that Tatum told the officer that he did not know anything about it.

A detective lieutenant testified that on October 17, 1944, he went to the Tatum house after having had a conversation with Tatum in the police department; that in the conversa

The official reporter for the preliminary examination of Floyd Tatum testified that at said examination Tatum said that he saw defendant Johns at the cafe; that Johns told him that Copeland had some gasoline stamps and that Goodwin then stated “We” or “I, will have to hit him”; that later Goodwin hit Copeland three or four times and knocked him down; that Johns reached into Copeland’s pocket and took his billfold and they all got into Tatum’s car and drove away.

A deputy sheriff testified that a statement was taken from defendant Goodwin to the effect that on September 11, he and Tatum entered the cafe at 8 p. m.; that Tatum left and said he would be back; that on his return Tatum said to Goodwin: “Come on, this fellow (Copeland) has a lot of gas stamps”;

Witnesses for the defense offered considerable testimony indicating that Copeland was quite intoxicated; that he was endeavoring to dispose of gasoline stamps by sale to several other people; that he was acting disorderly in the drinking place; that defendant Johns was elsewhere on the night of September 11th between 8:30 and 10:15 p. m.; and that witnesses had heard Copeland say that he had given the “C” ration book to Johns.

James Tatum, brother of defendant Floyd Tatum, testified that he was in the cafe on September 11 and saw his brother, Johns and Copeland leave the cafe; that his brother told him he was going home to get some money; that later James returned home and saw the police car leaving; that he went to the police station and heard Copeland say that Floyd Tatum did not hit him as he was too small; that some time later Floyd gave him (James) an envelope and told him to keep it; that the envelope contained twenty-six “R” gasoline stamps and that he returned the stamps to the officer.

The defendant Tatum testified in his own.behalf; that he was 18 years of age; that on September 8th he injured his hand and that on the morning of September 11th his hand was swelling up and that on that date he went to the doctor; that on the evening of September 11th he saw defendant Goodwin, took him to the cafe, and that while there Johns and Copeland came in and they all had a conversation; that Johns asked Tatum if he wanted to buy some gasoline stamps; that Goodwin and Johns called Tatum over and said: “This guy had a lot of gas stamps. . . . We ought to hit him,” and that to this Goodwin responded: “I will hit him”; that the three then left the cafe, went to Tatum’s house and procured $5 and returned; that while at the cafe Tatum gave Copeland $5

If believed by the jury, the evidence, both circumstantial and direct, fully supports the verdict and judgment.

The next point to be considered is whether the offense of robbery is sufficiently pleaded in the information by reason of the failure to plead ownership of the property claimed to have been taken.

Defendant relies principally upon People v. Cleary (1905), 1 Cal.App. 50 [ 81 P. 753 ], where it was held that an indictment charging robbery in taking money forcibly from the person of another, which did not allege ownership of the money taken in some person other than the defendant is insufficient and entitled defendant to an arrest of judgment. Several such cases are cited in 22 California Jurisprudence, page 848, section 14. Since those decisions, sections 951, 952 and 960 of the Penal Code have been amended. (Stats. 1927, p. 1043; Stats. 1927, p. 1065; Stats. 1929, p. 303.)

In People v. Summers (1930), 107 Cal.App. 250 [ 290 P. 464 ] this question was considered. There the defendant was charged as follows: that “on or about the 17th day of April, 1929, . . . they robbed J. H. Brown, etc.” The indictment was held sufficient to support the verdict of conviction on the charge of robbery under section 951, as amended in 1927. (See, also, People v. Fallai (1929), 99 Cal.App. 297 [ 278 P. 449 ]; People v. Sampsell, 104 Cal.App. 431 [ 286 P. 434 ].)

In People v. Sampson, 99 Cal.App. 306 [ 278 P. 492 ], it was held that where there was no doubt, either from the averments of the information or from the evidence, as to the identity of the property taken, and it was proved at the trial that the property belonged to the prosecuting witness, the failure of the information to allege the name of the owner of the property was immaterial under section 956 of the Penal Code.

In People v. Covington, 1 Cal.2d 316 [ 34 P.2d 1019 ], it was held that in a prosecution for robbery, there is a sufficient compliance with section 952 of the Penal Code if the statement of the offense is in the words of the enactment describing the offense or in any words sufficient to give the accused notice of

We are satisfied that the information here stated a public offense and that the evidence clearly established that the property taken was not the property of the defendant. In addition, it should be here noted that the trial court gave an instruction, at the request of the defendant, to the effect that “proof of the commission of a robbery requires proof of a voluntary intent to steal personal property. Evidence that personal property was taken from the person or immediate presence of another, without his consent, and by means of force and fear, does not necessarily, as a matter of law, prove that a robbery was committed. The evidence must show a felonious intent to steal.” We cannot see how defendant can claim prejudicial error by failure to allege in the information that the property taken was the property of the complaining witness or of one other than the defendant.

Defendant Johns’s argument that the testimony of defendant Tatum was not corroborated is equally untenable. It has been repeatedly held that possession of stolen property may be sufficient corroboration to warrant a conviction on the testimony of an accomplice. (People v. Rice, 29 Cal.App.2d 614 , 620 [ 85 P.2d 215 ].) The accusatory statements made to and the silence of defendant, possession of'the stolen property, the testimony of the complaining witness, and circumstances above related, were sufficient to corroborate the testimony of the codefendant Tatum. (People v. King, 40 Cal. App.2d 137 , 141 [ 104 P.2d 521 ].) The jury acquitted the codefendant Tatum. It cannot be said, as a matter of law, that he was an accomplice.

Defendant’s argument that the trial court refused to instruct the jury, as a matter of law, that Tatum was an accomplice, but left that question to the jury, is without merit. The jury had the right, either to believe or disbelieve his statements, and having been fully instructed as to the law governing the situation, the presumption must be that it performed its duty conscientiously in rendering the verdict, which in substance declared its belief in the truthfulness of Tatum’s testimony. (People v. Frahm, 107 Cal.App. 253 [ 290 P. 678 ]; People v. Howell, 69 Cal.App. 239 , 243 [ 230 P. 991 ].) A person jointly charged, is not, as a matter of law, an accomplice, where there is a dispute as to the witness’s com

Lastly, defendant complains because the court refused to give certain of his instructions and gave one of the People’s instructions. The court gave an instruction in the language of section 1111 of the Penal Code, defining an accomplice. The given instruction complained of is but a reiteration thereof and does not incorrectly define an accomplice, to defendant’s prejudice. (People v. Howell, 69 Cal.App. 239 , 244 [ 230 P. 991 ].)

Fifteen of defendant’s refused instructions are involved in this complaint. They concern the question of the duty of the jury in weighing the evidence, the credibility of witnesses, an instruction that gasoline coupons are not property and have no value recognized by law, the necessity of showing that the money alleged to have been taken was not the property of the defendants and that it was illegal to sell gasoline coupons to defendants.

We have thoroughly examined the instructions, both given and refused. We are firmly convinced that the subject matter has been fully covered by other instructions or that they are not applicable or that they are an erroneous statement of the law as applied to the facts in the instant case. No prejudicial error appears in the instructions, given or refused, or in the entire proceedings which should result in a reversal of ■ the judgment.

Judgment and order affirmed.

Barnard, P. J., and Marks, J., concurred.