People v. Burns

[588]

BROWN (Gerald), J.

The defendant Johnnie Burns was convicted by a jury of robbery and burglary. He admitted three prior felony convictions.

Accepting as true the evidence supporting the judgment, between 9 and 9:15 p.m. on March 2, 1963, Clarence Hartenstein (age 15) and his mother Helen Hartenstein were sitting in the kitchen of their home when there was a noise at the front door. When Clarence opened the door a man wearing a striped hat and white handkerchief completely covering his face grabbed him and demanded money or his life. As they struggled, Clarence caught a glimpse of his face and recognized the man as defendant. At one time the assailant seemed to be reaching in his pocket for a knife. In the meantime Mrs. Hartenstein ran from the house for help. Within a few moments Clarence broke loose and joined his mother in front of the house. A neighbor had called the police and several people were gathered on the street. Clarence and Frank Mesa (age 13) went to the alley behind the house where they saw a man leaving, identified by Clarence as his assailant. Frank observed the man pulling on something white in color covering his face; Frank did not see any object in his hands. When they returned to the front the police had arrived. A search of the house revealed that Mrs. Hartenstein ’s small dark purse containing $3.00 was missing from the drawer of a table in the living room. An officer took Clarence and Frank in a patrol car in search of the suspect. Within a few moments Clarence saw defendant walking up a ramp to a nearby surplus store and identified him as the assailant. He appeared to be carrying a small dark object which Frank saw him throw in the bushes. When he was arrested at the door he was empty-handed and was not wearing a hat. He had an open blade knife and two white handkerchiefs in his pocket. Clarence recognized him as the same person who came with another to his home a few hours before the attack to obtain a fan belt. That evening an officer found Mrs. Hartenstein’s purse in the bushes in the area where defendant was observed by Frank to throw something. A striped hat was found next day in the same area. Mrs. Hartenstein’s money was never located.

The identity of defendant was not without doubt. Clarence said, “I couldn’t see his face good in the dark.” It was dark in the living room where the struggle took place. Although Mrs. Hartenstein identified defendant as the assailant, cross-examination showed that at most she saw only a masked person