Defendant was informed against for the crime of robbery by forcibly taking from the person of one Bichard Johnson thirty-eight dollars, lawful money of the United States, and was convicted and sentenced to three years’ imprisonment. Defendant pleaded former acquittal, once in jeopardy and not guilty.
An information against defendant for the crime of robbery involving the same transaction had previously been filed, and under it defendant was arraigned and pleaded not guilty; a jury was impaneled, the information was read and the plea stated. After the jury was sworn, and before any evidence was offered, upon motion of the district attorney the information was dismissed and the defendant discharged. The ground for the motion was that the information did not allege the ownership of the property stolen, which was in fact true.
1. The first point made by defendant is that the court erred in instructing the jury to find for the people upon the plea of former acquittal and once in jeopardy.
The information was substantially the same as was the indictment in People v. Vice,
In People v. Jones,
Jeopardy attaches where a party is once placed upon trial before a competent court and jury, upon a valid indictment, to which he cannot be again subjected, unless the jury be discharged from rendering a verdict by a legal necessity or by his consent, or,' in ease a verdict is rendered, it be set aside at his instance. (People v. Webb,
2. Defendant urges that the Penal Code, section 211, defines robbery to be the felonious taking of personal property in the possession of another person, but does not provide, as in larceny, that it must be the personal property of another, and therefore the information was good because substantially in the language of the statute. (Citing Pen. Code, sec. 959, and numerous cases decided by this court.) In one of these (People v. Girr,
3. Defendant further claims that if the first information did not charge robbery it did charge assault with intent to commit robbery, under section 295, Penal Code, and that therefore jeopardy attached. It is sufficient answer to this point that the
4. Defendant makes the point that after the jury was discharged, and the first information dismissed and the prisoner discharged, the court did not direct a new information to be filed under section 1117. of the Penal Code, and that the district attorney had no authority to file an information, and the judgment in the case tried is void. (Citing People v. Schmidt,
Section 1117 provides that: “If the jury is discharged because the facts as charged do not constitute an offense punishable by law, the court must order that the defendant, if in custody, be discharged, .... unless in its opinion a new indictment or information can be framed, upon which the defendant can be legally convicted, in which case it may direct the district attorney to file a new information,” etc. In People v. Allen,
5. It is claimed that under section 1008 of the Penal Code the prosecution is barred, because the court did not direct a new information to be filed.
In People v. Jordan,
Whether defendant is in a position to avail himself of this section, even if it could be invoked, may admit of question, inasmuch as the only pleas made by him were not guilty, former acquittal, and once in jeopardy. (People v. Whelan,
The point need not be decided, however, as defendant has not shown that section 1008 is applicable to the case.
6. Defendant claims that it was error for the court to instruct the jury to find for the people upon the pleas of jeopardy and former acquittal. The ground of this objection is that the court invaded the prerogative of the jury; that the truth of the plea of former acquittal or jeopardy raises an issue of fact for the jury to determine, and that its judgment cannot be commanded by the court. (Citing Pen. Code, sec. 1118; People v. Roberts,
7. Error is claimed in refusing defendant’s instructions Nos. 17, 19, 25, 26, and 27. No grounds of defendant’s objections are stated in bis brief. I find that Nos. 17 and 19 were in fact given as requested. Instructions Nos. 25, 26, and 27 related to jeopardy, and were properly refused, inasmuch as the court properly instructed tbe jury to find for tbe people on this issue.
8. Error is claimed arising from modification of certain of defendant’s instructions, to wit, Nos. 4, 5, 8, and 10.
Instruction No. 4 was upon tbe question of reasonable doubt, which as given clearly stated tbe law. Tbe court struck out the clause giving the defendant tbe benefit of any doubt created by argument of counsel. It must be obvious that a court cannot submit a case to tbe jury upon tbe relative strength of tbe argument of the respective counsel. Tbe concluding paragraph of the instruction was stricken out very properly because it added nothing to tbe value of the rule of reasonable doubt, but, as expressed, rendered tbe rule itself doubtful of comprehension.
Instruction No. 5 was shorn of its concluding paragraphs, properly I think. The object of tbe instruction was to state where tbe burden of proof rested, and was well stated. Tbe paragraphs stricken out were counsel’s idea of tbe meaning of a verdict of not guilty, and were calculated rather to confuse the minds of tbe jury than aid them in a solution of tbe evidence.
Instruction No. 8 was cut down somewhat, but I fail to see wherein it fell short, as given, of being a satisfactory statement of what is meant by reasonable doubt, which was tbe intention of tbe instruction. Besides, tbe court gave defendant’s instruction No. 6 upon tbe same subject, which was very full.
9. The remaining error claimed in defendant’s brief is that the court allowed the witness, George Hall, to relate a conversation said to have occurred between the defendant and the district attorney in the latter’s office shortly after the arrest of defendant and before his examination upon the complaint filed against him in the justice’s court. When Hall came in he found the accused, the district attorney, and the arresting officer, Peer-man, in the room. He took down the statement in shorthand and afterward transcribed his notes and read this transcription as the statement of the accused. Counsel for defendant denounce this proceeding with great vehemence. The introduction of the statement was objected to as incompetent, irrelevant, and immaterial, and that the proper foundation was not laid for such testimony. Before the witness testified as to any statements made in his presence he was asked: “Q. I will ask you if there was any inducements held out on the part of the district attorney, or any present, any threats or menace used by the district attorney to coerce the defendant into making this statement?” To which he answered: “A. I can only answer by saying, none other than the statement shows.” The statement comprises fifty pages of the transcript and consists of a very rigid examination of the accused by the district attorney.
The following questions and answers will show whatever of inducements were held out or threats made to the accused: “Q. You saw Johnson Monday night in a saloon down here, didn’t you? A. Yes, sir. Q. You and Johnson had a little trouble, didn’t you? A. Not much, a little spat, that’s all.” This was just before the alleged robbery of Johnson and on the same day. He is then asked about the quarrel, about throwing dice and drinking beer, where he left Johnson that night, what time it was, what
The accused testified in his own behalf. As to the statement he said: “Well, that statement is not true; I made that under the expectation of getting turned loose. The district attorney told me that if I would explain myself there wouldn’t be nothing further said about it, or done about it, and so I tried to explain in a plausible way where I got the money. Of course T didn’t think he would use it against me, or anything like that. I thought that he just wanted me to enlighten him, and I thought that probably that was the best way to do it, so I told him that statement. In fact, any way, I did have money in a sock.” His story told on the witness stand about meeting Johnson and parting with him and going home Monday night is entirely different from the story narrated in the statement made to the district attorney.
If this statement is to be regarded in the light of a “confession,” it is brought dangerously near, if it does not overstep, the border line of involuntary admissions made upon inducement sufficient to render them inadmissible. But was the statement a confession? A confession is a person’s declaration of his agency or participation in a crime. The term is restricted to acknowledgments of guilt. (People v. Strong,
It is true that he admitted the truth of matters which, while they did not in themselves involve Ms guilt, did, when connected with other facts, tend to prove it. But proof of such admissions is competent, without the preliminary proof. (People v. Parton, supra; People v. Le Roy, supra.)
That the witness, Hall, was permitted to read his transcription of the statement, taken down by him in shorthand, was not error. He had a right to refer to this to refresh his memory. (People v. Cotta,
It is not urged by counsel that the evidence does not warrant the verdict of guilty, except as to plea of jeopardy. The evidence fully justified the verdict. It is recommended that the judgment of conviction and order denying the motion for a new trial be affirmed.
For the reasons given in the foregoing opinion the judgment of conviction and order denying the motion for a new trial are affirmed.
Hearing in Bank denied.