People v. Henson

SHEPARD, Acting P. J.

This is an appeal by defendant Albert Limuel Henson from judgments of conviction on four counts of armed robbery and from the order denying defendant’s motion for a new trial. He also attempts to appeal from the “sentence.”

Facts

The principal physical facts are not in dispute. At about 10 p. m. on January 17, 1961, codefendant Kenneth Hugh Fetters, armed with a 30-caliber Winchester rifle and a 32-caliber Beretta pistol, entered the Palace Liquor Store in San Bernardino with appellant immediately behind him. Appellant was armed with a B.B. gas pellet gun. The two threatened the clerk, Czarnecki, and a patron named Judon with the rifle and gun and were in the process of robbing them when a second patron, Sims, entered. He also was held up. The process of robbery again proceeded. Then a third patron, Berry, entered and was also held up. All four were robbed of money. Appellant fully participated in all the acts of robbery and all of the money was taken by appellant. About the time the robbery was completed, three police officers arrived and

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Fetters and appellant were arrested. Appellant had in his pockets all the money taken by both during this and two previous robberies they had committed the same night. The total amount was $286. Appellant does not deny the truth of these facts. He himself readily testified to them on direct examination. He defended on the sole ground that he acted under compulsion, in fear of bodily harm or death from Fetters if he refused to participate in the robberies. Appellant was tried separately, Fetters being then confined to a state mental hospital on a finding of present mental illness.

District Attorney’s Conduct

Appellant first contends that the District Attorney was guilty of prejudicial misconduct in asking appellant certain leading questions on cross-examination, insinuating certain facts the proof of which was not offered. He does not specify what the exact questions were at which he takes offense but refers to five different pages of the reporter’s transcript. Appellant, in his direct examination, had testified at length about his asserted fear of Fetters, and that he engaged in this and two other robberies under that same fear compulsion during the hour or two immediately preceding the robberies here charged. The cross-examination, recorded on the pages referred to in appellant’s brief, all refers to the event of said two prior robberies, evidently in perfectly legitimate pursuit of proof that appellant’s participation in all three robberies was entirely voluntary and not under compulsion. All of his questions were entirely within the bounds of material facts developed on direct examination. The questions were not improper. (Pen. Code, § 1323; Code Civ. Proc., § 2048;