108 P. 868 | Cal. Ct. App. | 1910
Information for burglary. Verdict of guilty and sentence of five years in the state prison. There is an appeal from the judgment and also from an order denying defendant's petition for probation. The latter order rests entirely within the discretion of the trial court, and is not made appealable by the statute.
The information, after stating the name, place and date of the offense, charges that defendant did "willfully, unlawfully, feloniously and burglariously enter a building located at No. 15 East Haley street in the city of Santa Barbara, which said building then and there belonged to one Frank Loustalot, and was then and there used by the said Frank Loustalot as a saloon and barroom, with the intent then and there to commit the crime of larceny," etc. In support of the demurrer to this information it is urged that it is insufficient, in that it nowhere alleges that the person charged was a competent person or one capable of committing a crime; and that the intent alleged by the information is the intent of the owner of the building and not the intent of the person charged with the offense. The first objection appears to be based upon the theory that the defendant having been characterized as "a boy" by some of the witnesses at the trial, the information should have contained some allegation negativing the inference that he lacked capacity to commit crime. Section
If the evidence could be considered in this connection, we would still be called upon to say that there is nothing in the record to show that the "boy" is a child under the age of fourteen years. His age does not appear, and while some witnesses speak of him as a boy, he is also mentioned as a *776 man. And the presumption that the trial court did its duty in sending him to state's prison would negative any inference from the record that he was not over fourteen years of age.
There is nothing in the other point raised on the demurrer to the complaint; the intent is sufficiently clear.
The record gives no support to appellant's objection to the trial court's ruling denying his motion for a continuance. No showing by affidavit was made, and upon the statement by the district attorney that the witness, to procure whose attendance the continuance was sought, was a fugitive from justice, counsel for defendant expressed his willingness to proceed without the witness. The record does not sustain the contention of appellant that the court would not permit him to file an affidavit making a showing in this regard.
The verdict is fully supported by the evidence in the record. It is unnecessary to state either the facts or a summary of them. Every element of burglary in the first degree was established. If the use of the term "boy" by counsel and some of the witnesses could be considered as evidence tending to show that defendant had not reached the age at which he could be held legally responsible for crime, the use of the term "man" would be equally available to show the contrary, and thus there would be a substantial conflict upon this issue, which the verdict of the jury has settled, against appellant's contention, beyond disturbance by this court.
The rulings of the court upon the admission of evidence which are complained of were not erroneous. The proper practice when cross-examining a witness by asking him what his testimony was upon a former trial of the cause, or at the preliminary examination upon a felony charge, is well established. Where an attempt is made to put into the witness' mouth language which is stated to be his testimony given at the preliminary examination for the purpose of having him assent thereto, it is only fair and just to the witness that he should be permitted to see the transcript, or have the testimony read to him from the record, if there be such a record at hand, and the court properly required this to be done in this case. The distinction between the question presented here and that passed upon by the supreme court in People v. Hart,
It was not improper for the trial judge to call the attention of counsel for defendant to the fact that his questions were an evasion of a former ruling of the court where the district attorney made no objection. It is the duty of a judge to see that a trial is conducted in accordance with the *778 rules of evidence and law as these appear to him, whether counsel object or not. The trial of a cause is not to be conducted as if it were the playing of a game by the parties and their attorneys, at which the judge sits to arbitrate disputed questions of law or practice only when called upon by one or the other or both of the parties, but as an administration of the law for the purpose of securing a hearing on the merits of the cause, and it is the duty of the judge trying the cause to assume the directing hand whenever this end is not being accomplished, assuming to act, however, only within his constitutional province of stating the testimony and declaring the law. There was no intimation in the conduct of the judge in this cause that could in any manner have conveyed to the jury that he had an opinion as to the guilt or innocence of the defendant.
We see nothing in the other assignments of error, in relation to the admission and rejection of evidence, prejudicial to the defendant. The examination of the witnesses by the district attorney assigned as misconduct was within the scope of proper examination in the case of the sheriff, and of proper cross-examination in the case of the witness McCaughey. A witness who testifies to the general reputation of a defendant may be asked on cross-examination as to his or her knowledge of particular instances and statements made by the witness relating to particular acts of the defendant tending to discredit the opinion given. Where such questions are asked in good faith by a district attorney, there is no misconduct, and such was the case here.
There being no prejudicial error in the record, the judgment is affirmed.
Allen, P. J., and Shaw, J., concurred. *779