People v. Thornton

GRIFFIN, Acting P. J.

Defendant and appellant Thomas Thornton was jointly charged with Eleanor Thornton and one Harreld in count one of an information with the crime of robbery; in count two with kidnaping; and in counts three and four with the crime of forgery. In count five appellant was charged with burglary and in count six with possession of a dangerous weapon, in violation of the Dangerous Weapons Control Act, as amended (Stats. 1947, chap. 1281, p. 2792; 1 Deering’s Gen. Laws, Act 1970.) In count seven he was charged with a prior conviction of a felony, to wit, robbery

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in Iowa; and in count eight with a prior conviction of a felony in Wyoming; and that he served time in states’ prisons for such crimes.

Appellant, while represented by counsel, pleaded guilty to counts one, three, four, five, and six, and admitted the two prior convictions of robbery as charged in counts seven and eight. Thereafter, the court ordered that appellant be sentenced to state’s prison and found that appellant was one coming under the provisions of section 644(a) of the Penal Code and adjudged him an habitual criminal to be punished by imprisonment for life.

Appellant, in propria persona, appealed from this judgment. The only questions attempted to be presented on this appeal are the actions of the trial court in its reception of evidence fixing the degree of the crime of robbery as charged and pertaining to the question whether the defendant was at the time armed with a deadly weapon, to wit, a 25-ealiber automatic pistol. It was stipulated that the court might consider the testimony of Mr. Samuels, the victim, concerning the degree of robbery, as appeared from his testimony taken at the preliminary examination. Quotations from this record appear in the reporter’s transcript and show that the appellant knocked at the door of the complaining witness’s home about 3 o’clock in the morning and came in; that appellant “had a gun in his hand” and he “pushed it in my ribs,” took the complaining witness’s money from the pocket of his near-by pants while the other defendant twisted his arm around his neck, and choked him; that appellant hit the complaining witness over the head with his gun and told him to dress and take the defendants in his automobile. It was after considering this evidence that Eleanor Thornton was called as a witness for the prosecution. She stated her true name was Eleanor Kelly; that she rode to Samuel’s house trailer with appellant in a cab, and that appellant had a 25-caliber automatic pistol in his possession at the time. This answer, pertaining to the gun, was stricken for the purpose of objection, which counsel stated was made “under see. 1322 of the Penal Code” on the ground that “this testimony is inadmissible” as against appellant by “reason of the fact that the marriage of this witness to the defendant Thornton . . .” The court then allowed evidence on the question of the claimed marriage. The witness testified that she married one Kelly on December 15th, 1949, in Nevada and the recorded marriage