People v. Kerns

DRAPER, J. A jury found defendant guilty of kidnapping for purposes of robbery and of two counts of armed robbery. He appeals from order denying new trial and from the judgment.

A tall man and a man wearing a patch over one eye entered the Belmont Casino at about 1:50 a. m. The man wearing the eye-patch displayed a gun and announced "This is a holdup. ’ ’ The two bound Hammons, the bartender, and a visitor, Miss Gallagher. The robbers took a wallet containing $14 from Hammons. They obtained some $200 from the change drawer, and found from Davis, the manager, that the remainder of the money was in a locked safe. Davis did not have the combination, but said that a eoowner, Mrs. Cook, did have it. Hammons and Miss Gallagher were left under control of the tall robber, who was armed. The eye-patched robber compelled Davis, at gunpoint, to drive to Mrs. Cook’s residence. She was not at home, but the robber talked to her roommate, Miss Salvino. At the robber’s direction, and after being warned that the hostages would be harmed if she notified the police, Miss Salvino agreed to telephone Mrs. Cook and have the latter telephone the Casino. The robber returned Davis to the casino, where the two robbers and three victims remained until about 3 a. m., when the tall robber left, taking the stolen change money with him. The eye-patched robber remained, holding the three victims at gunpoint, until 7:45 a. m., when Mrs. Cook ’phoned. She told Davis the combination. At the robber’s direction, he opened the safe. The patched robber removed its contents, something over $3,000, and forced Davis to drive to Golden Gate Park, in San Francisco. There the robber forced Davis to alight and drove off in Davis’ car.

At trial, Davis, Hammons, Miss Gallagher and Miss Salvino all identified appellant Kerns as the robber who wore the eye [3]patch. Appellant did not testify. He was convicted of robbery of Hammons, robbery of Davis, and kidnapping of Davis.

Each of the four who identified appellant as the robber testified, over objection, that he had made like identification at a lineup staged after appellant’s arrest. Error is asserted in the admission of this evidence. The argument is that since there was no evidence that appellant was free to deny the statements identifying him, they were not admissible as accusatory statements. The claim is without factual basis. One of the witnesses testified that when she identified appellant at the lineup, he stepped forward and asked if she meant to refer to him. Thus we cannot accept his present argument that he could not hear or was in some way restrained from answering those who identified him at this same lineup. Further, the evidence was admissible on a theory wholly distinct from that under which accusatory statements are admitted. The evidence tended to corroborate the courtroom identification by each of these witnesses. The rule allowing such evidence, stated by Wigmore (4 Wigmore, Evidence (3d ed.) p. 208), has been adopted in California (People v. Slobodion, 31 Cal.2d 555, 559-560 [191 P.2d 1] ; People v. Bennett, 119 Cal.App.2d 224, 226 [259 P.2d 476]).