People v. Blackwell

VALLÉE, J.

In count I of an information defendants Blackwell and Prey were accused of armed robbery of Igor March, clerk of the Twilighter Motel, 4300 Wilshire Boulevard, Los Angeles, on April 28, 1960. In count II defendants Blackwell and Johnson were accused of armed robbery of John Delbis, clerk of the Cloud Motel, 3400 West Third Street, Los Angeles, on April 26, 1960. In count III defendant Blackwell alone was accused of armed robbery of James Russell at a third separate and distinct location on March 13, 1960. Blackwell and Johnson were each charged with a prior felony conviction and with having served a term of imprisonment.

Blackwell pleaded guilty to all counts, leaving Prey alone to be tried on count I and Johnson alone to be tried on count II. A jury found both Prey and Johnson guilty as charged. New trials were denied and Prey and Johnson were sentenced to state prison. Prey, sometimes referred to as defendant, appeals from the judgment and the order denying a new trial.

Igor March, night clerk of the Twilighter Motel in Los Angeles, testified: About 2 a. m. on April 28, 1960, two men appeared at the registration desk. One of the men pulled a gun and said, “Stay where you are.” Blackwell asked, “Where is the money?” Blackwell looked around, found $5.00, and took it. March noticed a hotel tag with number 608 and “Banker” on it hanging from Blackwell’s pocket. March testified he could not identify the man with Blackwell; the other man had a hat on and a green suit; the other man had the hat pulled down to his chin; he could see his chin only; he “couldn’t see anything”; from the nose down, that part of the face, looked familiar. The man with Blackwell had his hand on the counter “not more than 30 inches” from him and he did not notice any tattoos. The other man said, “Give us five minutes,” and they left; as the men went out they slammed the door; he went out and saw a dark green car pull away; he called the police and told them about the tag.

A few days after the robbery March was taken to a police lineup. He picked Blackwell out of the lineup. March testified: “Q. Did you see Mr. Prey in that lineup? A. Well, as I said, I just couldn’t. Q. In the lineup at the time you picked

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out Mr. Blackwell here-A. I couldn’t, know. I couldn’t identify because all men were without hats and this other man during the holdup had his hat on and I just couldn’t identify him. ... Q. At the preliminary hearing you saw three men seated at a counsel table like the defendants are now ? A. That is right. Q. At that time were you called upon to look at Mr. Prey, examine him? A. They asked me to but I couldn’t identify. Q. At that time you also said that he looked similar but you couldn’t tell? A. Prom here down, but I wasn’t sure. . . . Q. The District Attorney asked you if you had testified that Mr. Prey resembled the man? A. As I said, from here on, his chin, but still I wasn’t sure because I didn’t think it was enough identification on the chin. . . . Q. Even after seeing Mr. Prey at a lineup and at the preliminary hearing and here in court you can’t honestly say you can identify him ? A. No, sir. ’ ’