People v. Hornes
People v. Hornes
Opinion of the Court
The district attorney of Los Angeles County filed an information wherein defendants were accused of the crime of robbery while armed with a deadly weapon. It was also alleged that each defendant had suffered a prior conviction of robbery and had served a term of imprisonment therefor. Defendants pleaded not guilty. Trial by jury was duly waived and by stipulation the cause was submitted on the transcript of the preliminary examination with each side reserving the right to offer additional evidence. Defendants were adjudged guilty of robbery which the court found to be robbery of the first degree. No finding was made as to the prior conviction charged against each defendant. Their motions for new trial were denied and each was sentenced to state prison.
Defendant Hornes appeals from the judgment and order denying his motion for a new trial. Defendant MeCollin appeals from the judgment and sentence. Since no appeal lies from the sentence as such (People v. Gallardo, 41 Cal.2d 57, 60 [257 P.2d 29]), the attempted appeal therefrom must be dismissed.
We regard the following as a fair epitome of the factual background surrounding this prosecution.
On the early morning of October 19, 1957, Edward Rollins was on duty as the attendant at a service station located on Florence Avenue, in the city of Los Angeles. At about 3 a. m. that morning, according to the testimony of Mr. Rollins, defendant MeCollin, with his hand under his coat, approached the witness at the service station, and pointing to Mr. Rollins ’ automobile, said “Isn’t that tire flat?” The witness testified,
McCollin held Rollins momentarily, and, after searching his person, told him to “make the block.” Rollins went to San Pedro Street and Florence Avenue and called the police. This was at about 3:15 a. m. He then hurried back to the station, called the “day man” who was to relieve him, and checked the cash register. Approximately $190 was missing. When Rollins had left the station with McCollin the cash register was closed; when he returned, it was open. He was the only one working at the station and had given no one permission to open the register.
A radio ear of the Los Angeles Police Department responded to Rollins’ call. Officer Funk first observed the defendants walking together about two and one-half blocks from the service station, at about 3:20 a. m. The defendants were taken to the service station, and Rollins was asked if he could identify them. When asked about Hornes, Rollins replied, “I am not sure. I don’t want to have any trouble. I have a wife and three kids.” As to McCollin, he said, “Yes, I think that’s the man.” Later the same day at the police station Rollins positively identified the defendants. He testified he had never worn eyeglasses or had a restricted driver’s license, and no one had talked to him about identifying the appellants.
Although defendants were apprehended within 45 minutes after the alleged robbery, the amount of money taken by the robbers or the weapon used were not found in the possession of defendants or in their automobile. Defendant McCollin had no money on his person and defendant Hornes had $40 in his possession.
Sworn as witnesses in their own behalf defendants testified they were together on the night and early morning of their arrest. That defendant Hornes called for defendant McCollin
As their first ground for reversal appellants contend that “there is no substantial evidence to connect appellants to the robbery.” They assail the testimony of the victim as to identification of appellants, pointing out claimed inconsistencies and uncertainties therein, saying, “However, with the aid of suggestive questions and instructions by People’s counsel, Rollins did identify Appellant Me Collin as the ‘short man’ and Appellant Hornes as the ‘tall man’ at the Preliminary Hearing; and there was evidence at the Preliminary Hearing and at the trial that Rollins, after failing to recognize Appellants at the service station, went to the police station with his manager and there identified Appellants as the ‘robbers’ upon seeing them standing, alone, behind a glass door.” Appellants assert that in the light of the foregoing, the testimony of Mr. Rollins standing alone is insufficient to identify them and lacks any corroboration. However, it is well settled that the testimony of a robbery victim if believed by the trier of facts, is sufficient of itself to war
It is next contended by appellants that there is no substantial evidence that the crime of armed robbery of the first degree was committed by anyone. In this regard, appellants assert that ”... there is no substantial evidence that $190 or any other property was taken from the immediate presence of Rollins by reason of the force used upon Rollins by the ‘short man’; and that therefore Appellants conviction should be reversed irrespective of whether or not there was substantial evidence of their participation in the events
Appellants’ claim that the property was not taken from the “immediate presence” of the victim is equally untenable. Although the station attendant was unable to view the actual taking, or sense it in any way, the court below was entitled to conclude from the evidence that appellants sought to facilitate their crime by removing the victim some 100 yards from the scene. When appellant MeCollin compelled the victim Rollins to leave the station he thereby initiated the first of a chain of acts leading directly to the consummation of the robbery. That the victim was therefore, constructively present during the “taking” and that such “taking” was within his “immediate presence” is supported by the case of People v.
The remaining elements of the crime, viz., fear and the felonious intent to rob, are amply supported by the evidence.
Finally, appellants urge that they were convicted “solely because they were on parole and associating with each other, a parole violation, near the time and place of an alleged robbery.” An examination of the record fails to sustain appellants in this contention. While their counsel in his argument to the court made mention of appellants being on parole, and the deputy district attorney disclaimed any intention, “. . . to infer that they (appellants) were guilty just because they were violating their parole,” at the conclusion of arguments by counsel, the court simply announced, “The defendants will be found guilty as charged.” Furthermore, since the evidence was sufficient to sustain the adjudication of guilt, what appellants contend actuated the court in arriving at such conclusion, does not warrant a reversal.
The attempted appeal from the sentence by defendant McCollin is dismissed and the judgment as to him is affirmed. The judgment against, and the order denying motion for a new trial as to defendant Hornes are, and each is affirmed.
Lillie, J., concurred.
Concurring Opinion
I concur. In this case each of the defendants was charged with a prior conviction of armed robbery. The certified copies of the former prison records were in proper order, and were received in evidence. Each defendant ad
The. court was fully informed of the background of each of the defendants, for the judge said at the time of sentence:
“The Court: Yes, I have also checked my notes, and the preliminary transcript shows that these gentlemen were convicted in 1954—Hornes in 1954 for robbery, and McCollin in 1955 for robbery. They served a term of imprisonment for those offenses, and it seems to me that they, more than anybody else, ought to know the seriousness of the conditions of their parole. Apparently they took it too lightly. I like to give a man a chance, but they just repeatedly become involved in offenses of this kind, and I don’t see that there is anything we can do for them. I wish I had a pill I could give them to straighten them out, but I haven’t.”
The court then made no findings as to the prior convictions, as required by Penal Code, section 1158, and sentenced each of the defendants as a first offender. As said in People v. Fields, 167 Cal.App.2d 773 (filed February 10, 1959), at page 778 [334 P.2d 1001] : “. . . the defendant in this ease is now, by reason of the judge’s failure to find as to the prior convictions . . . permitted to serve a sentence which can be considerably less than that required and set forth in the statutes. ’ ’
Reference
- Full Case Name
- The PEOPLE, Respondent, v. OTIS HOLLY HORNES Et Al., Appellants
- Cited By
- 18 cases
- Status
- Published