162 P. 401 | Cal. Ct. App. | 1916
This case is a companion to that of People v. Horgan, ante,
p. 105, [
The facts as to the commission of the offense are identical with those presented in the Horgan case, and, as in that, the defendant here complains of a number of rulings by the court in admitting and excluding evidence, some of which were discussed in the Horgan case. As to these it is unnecessary to repeat what was there said.
Dan Boyd, a witness for the defense, was, on direct examination, interrogated as follows: "Q. Have you been approached by anybody, either the sheriff or district attorney of this county, to change your testimony as given at the two former trials of this case? Q. Is it not a fact that an officer from the district attorney's office came to you while you were in the county jail, and endeavored to get you to change your testimony? Q. And didn't he tell you at that time that if you would change your testimony that would convict Allen that the case against you would be dismissed?" to all of which objections were sustained. In the absence of any enlightenment upon the subject, we are unable to perceive what purpose defendant had in asking the questions, or how they could possibly be material and pertinent to the issues being tried. It is not claimed that Boyd's testimony was influenced in any way, or that he testified other than truthfully; and even if it were conceded that the county officers did try to corrupt and induce him to commit perjury, since they failed to succeed, defendant could not be prejudiced by such efforts.
A number of questions were asked by the district attorney on cross-examination, to which objections were sustained and the jury told to disregard the questions; nevertheless defendant *112 assigns the asking thereof as misconduct of the district attorney and well calculated to prejudice defendant in his substantial rights. We do not think so. There is nothing in the circumstances presented by the record from which a presumption of prejudice could be drawn, based upon the action of the district attorney in asking the questions, answers to some of which the court might properly have permitted as cross-examination. The record presents nothing upon which prejudicial misconduct of the district attorney can be predicated.
Since the order in which testimony may be introduced is a matter largely in the discretion of the court (People v. Jones,
As stated, defendant was jointly charged with the commission of the crime with James Horgan, who it appears was tried and convicted. At the trial, Allen was called as a witness on behalf of defendant and gave testimony which clearly tended, not only to incriminate the defendant Horgan, but also to incriminate himself. When the trial of this defendant was called, his attorney made a motion to dismiss the case against him upon the ground that section
Another point made by appellant as ground for reversal arises out of that part of the charge of the court to the jury which deals with the form of their verdict and the offenses of which he might be convicted under the information. The court instructed the jury that their verdict might be either one of "not guilty," or one of "guilty of robbery as charged in the information," or "guilty of grand larceny," or "guilty of assault with intent to rob one Jacob Widener." The verdict of the jury was, as hereinbefore stated, "guilty of assault with intent to rob one Jacob Widener." Appellant insists that, inasmuch as the information charged defendant with the commission of robbery, committed as follows: "The said . . . James Allen . . . on the sixteenth day of January, *114
1916, at the said county of San Bernardino, state of California, did willfully, unlawfully and feloniously, and by means of force and fear, rob, take, steal and carry away from the person, possession and immediate presence of Jacob Widener, and against the will and without the consent of the said Jacob Widener, . . . then and there the property of the said Jacob Widener," he could not be convicted of assault with intent to rob, since the information contained no appropriate allegations charging him with such offense. In our opinion, the contention is without merit. Section
The judgment and order are, therefore, affirmed.
Conrey, P. J., and James, J., concurred.