People v. Robinson

GRIFFIN, J.

Defendant and appellant was charged with burglary and seven prior convictions of felony (six burglary and one escape). He pleaded not guilty to the charge, admitted the prior convictions and a jury trial resulted in a verdict of guilty (burglary, second degree). A motion for new trial was denied.

The principal contentions on appeal are that the evidence is legally insufficient, particularly as to the identification of the defendant; that the district attorney and jury were guilty of misconduct; and the court erred in decisions on questions of law.

On July 14,1955, the complaining witness was sun-bathing in her back patio. About 3 p. m. she walked to her bedroom and saw a man about to leave it through an opposite doorway. She could see his face but was unable to positively identify him at the trial. She described him as a dark individual with long straight hair. He had taken her wallet and change purse. She followed him across the street, screaming that she had been robbed. A Papermate pen, inscribed “General Cleaning Co.” showing evidence of wear, fell from his pocket. Defendant was employed by that company from November, 1954, to May, 1955, and pens of this type were available to defendant and his customers. A Lieutenant Commander Fogg saw the complaining witness and pursued the defendant in his car around the corner where he entered a parked 1949-1951 green Pontiac. He took the license number and turned it over to the complaining witness. He saw defendant’s full face and he was later shown defendant’s photograph obtained from the police records and was asked if this resembled the burglar and he replied: “Resemble him—this is the man.” At the trial he testified that defendant “resembles him more than anyone I’ve ever seen.” The officers subsequently took the license number given to them by the complaining witness and cheeked by teletype with the Motor Vehicle Department to determine the ownership of the car and found it was registered to one Miss Lorene Lee, and gave her address. The next day the officers went there and saw a 1951 green two-door

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Pontiac in front of her house. They questioned her. and discovered she lived with defendant at that address and that on occasions defendant used this car. She stated at the time that it was possible defendant did use this ear on the day of the claimed burglary, although at the trial she testified it was not out of her possession on that day. Defendant furnished other witnesses who also claimed they saw the car there during the period in question. Defendant was arrested and was asked if he committed the burglary described. He did not deny the accusation but stated: “No, I’m not denying it but I’m not admitting it.” He did not testify at the trial. His defense was an alibi. He presented an employee of the General Cleaning Company who testified that defendant was driving a 1936 Ford panel truck on the afternoon of July 14, 1955, around 4 p. m. “as near as I can recall ... I cannot exactly remember.” He attempted to describe defendant’s dress at the time, which he claimed was different from that described to him by the complaining witness when she inquired as to whether defendant was employed by that concern. Another such employee corroborated this testimony. Another witness, who was a fellow member with defendant in Alcoholic Anonymous, testified that defendant parked his truck at his place of business on