People v. James

DUNIWAY, J.

Willie James was found guilty, by a jury, of robbery in the second degree (Pen. Code, § 211), and he appeals from the judgment of conviction and the order denying his motion for a new trial. Below, he was represented by the public

defender;

here, he is represented by court-appointed counsel. He claims prejudicial error in two respects: (1) that the prosecution improperly offered evidence of another robbery, purportedly to show common scheme and design, which error was not cured by an admonition to the jury, and (2) that evidence as to a prior misdemeanor conviction was improperly received and made the basis for argument by the prosecutor. We conclude that the judgment should be affirmed.

It is not contended that there was insufficient evidence to sustain the verdict. Briefly, that evidence shows that on February 20, 1960, appellant, together with one Matthew (a codefendant) and perhaps a third man, assaulted one Marasco and took from him a wallet containing 10 dollars and a coin purse containing five dollars. The details of the assault were recited by Marasco, and in part by one Henson, who saw it in progress and pulled appellant away. Henson also saw appellant and Matthew, a little later, with the wallet, which was in appellant’s hand. It was found near the scene of the assault, empty. The purse was not recovered, and neither defendant had the money on him when arrested a short time after the assault. No witness actually saw the removal of

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the wallet or purse from the person of Marasco, but the latter was positive in his testimony that he had them on his person at the time of the assault and that they were missing immediately afterward. Both Marasco and Henson identified appellant as the one who attacked Marasco from the front, and Matthew as one who simultaneously attacked him from the rear. However, the identification of Matthew was less certain, which probably explains the jury’s verdict of not guilty as to him. The evidence is clearly sufficient.

The two matters of which appellant complains are:

First.

The prosecution called as a witness one Lee, who testified, in substance, that in August 1958, appellant assaulted him and took from his person one cigarette and three and one-half dollars. When the testimony was offered, appellant’s counsel objected and demanded an offer of proof, to which the prosecutor replied that the purpose was to show “common scheme and design. ’ ’ The evidence having been received, counsel again objected, and the following occurred: “The Court: . . . All of the witness’ testimony will be stricken out and the jury admonished to disregard it. I would be glad to discuss the matter with Counsel in chambers if you want, but-As a matter of fact, we might as well do it right now.” In chambers the court indicated that it felt that the testimony was improper, but that an admonition would be sufficient. On returning to the bench, the court did admonish the jury as follows: “I want again to admonish the jury to completely disregard the testimony of this witness. We have a rule of law that permits the introduction into evidence of what we call similars when they show or tend to show a common plan, scheme or design. Now usually those are limited to a person who writes a series of bad checks or so-called bunco games where somebody has defrauded somebody of money and things of that sort. In crimes of what we term generally crimes of violence, the only time in which we ever allow evidence of so-called similars is when there is a certain plan or scheme or design, such as bank robberies where one person comes in and presents some note or something to the teller, and the other goes to some other part, and so on. It has some tendency to show that it was all a part of a common plan, scheme and design. So as best I can, and I will not go on any further, I will ask you to erase the testimony of this last witness from your minds.” The People then rested.