People v. Charles Austin Centers

YORK, P. J.

Appellant was charged by an information with the crime of robbery, together with a prior conviction of the same offense. He admitted the prior conviction and the jury found him guilty of robbery of the first degree. From the judgment of conviction which followed, and from the order denying his motion for a new trial, he prosecutes this appeal.

Apparently appellant does not question the sufficiency of the evidence to sustain his conviction, but relies upon alleged errors of the trial judge in connection with the admission of evidence which, he contends, were so prejudicial to his cause as to require a reversal of the judgment:

1. That the admission and reading of the testimony of the witness Salvatore as given at the preliminary hearing was illegal in that no proper foundation was laid to comply with section 686 of the Penal Code;

[633]

2. That the admission of the testimony of a police officer as to the purported confession made by defendant Teague was illegal and a subterfuge to get it before the jury, there being a question as to its free and voluntary character.

The evidence adduced at the trial herein reveals that about 1:30 o’clock on the morning of Monday, March 16, 1942, three men armed with revolvers entered through the rear door of the Tam O’Shanter Inn in the city of Los Angeles. The inn had closed for the night and there remained on duty only the night manager, Scheid, and four employees, to wit: Albert lift, Walter Salvatore, John Schneider and Anton S. Weidemeier. Manager Scheid testified that when the three men armed with revolvers entered the place, he turned and faced them and looked directly at defendant Centers, who said: “This is a holdup”; and that defendant Teague was standing behind Centers and appellant Wilson was standing “back over by the entrance to the dining room.” They first forced Scheid and the four employees to lie on the floor in the rear kitchen and then forced Scheid to open the safe in the office from which they extracted approximately $1,700 in checks, currency and coins.

Appellant sought to establish an alibi by the testimony of his mother and his aunt to the effect that he was not present at the robbery but was at home in bed at 1761 Whitefield Road, Pasadena, California, a distance of from seven to ten miles from the scene of the crime. However, appellant was positively identified as a participant in the robbery by manager Scheid who, in answer to the question, “When did you see Wilson?”, testified: “Well, I saw him the first time when I went into the kitchen and when I came back I passed him and then when I came out again I saw him standing over the boys. ’ ’ This witness subsequently identified and ‘ ‘ picked out ’ ’ Wilson from a police showup line. Appellant was also positively identified by the witness Weidemeier as having participated in the robbery armed with a revolver. The witness Schneider testified he was not sure but that appellant resembled one of the men who took part in the crime.