65 P. 823 | Cal. | 1901
Defendants were jointly accused of the crime of burglary, were tried together and convicted, the
1. The motion for discharge was on the ground that the verdict was no verdict, because there is no such offense known to the law as “burgulary”; citing People v. St. Clair, 56 Cal. 406, where the indictment charged an entry into a stable with intent to commit “larcey.” It was held that there was no such felony as “larcey” known to the law, and that the maxim idem sonans did not apply. In that case the fatal defect was in the indictment itself, and not in the verdict of the jury. The error here was in the orthography of the word “burglary” as used in the verdict, and was merely a clerical error, which seems to have been overlooked by the court and counsel until the motion for a new trial was made. Where the intention of the jury is unmistakable, mere clerical errors should be disregarded: Jeansch v. Lewis, 1 S. D. 609, 48 N. W. 128. The verdict, being general, and fixing the degree of the crime, would have been complete had the word “burgulary” been omitted altqgether. Penal Code, section 1151, which provides: “A general verdict upon a plea of not guilty is either ‘guilty’ or ‘not guilty,’ which imports a conviction or acquittal of the offense charged in the indictment.” The obnoxious word may be rejected as surplusage, if necessary to sustain the judgment. But, aside from the foregoing considerations, we think the word used by the jury cannot be read as 'any other word than “burglary.”
2. It is urged that the evidence is not sufficient to sustain the verdict, for the reason that there was no evidence in any way tending to establish the charge except the possession of the property claimed to have been stolen. We have carefully examined the testimony, and are satisfied that there is sufficient evidence to support the verdict as to defendant Brady, but not as to defendant Helms. It appeared that on July 5, 1900, defendant Brady leased from one Keagle a place in the country, known as the “Pope
There is no evidence connecting Helms with the taking or with the possession of the goods, except that he was living in the house with Brady. There was evidence that Helms told a witness that Brady got the articles Avhere Brady had told the witness he got them; that Helms was with Brady when the latter got a team from the Lewis ranch, but not when he got the wagon from Mrs. Gum, which was hired to Brady. So far as appears, defendant Brady had a team and wagon of his own, and it appears that on July 9, 1890, some articles of furniture were delivered to Brady at the Union Transportation Company’s wharf at Stockton. Helms was seen with Brady about July 22d, and he testified that he Avas living with him on July 9th. But there is no evidence that he had possession of the stolen property or made any claim to it Avhatever or had anything to do with it. If he made statements contrary to the truth as to Avhere Brady got it, that fact Avould
3. Mrs. Brady was a witness for defendants, and on cross-examination the district attorney asked her the following question: “Q. Mrs. Brady, do you remember being in the sheriff’s office on the 24th of July, 1900?” Defendants objected as not cross-examination. The question was completed by stating the persons present, after which the witness was interrogated at considerable length as to what was said by her at that time relative to certain of the stolen articles and where her husband got them. She had testified in chief that her husband purchased the property in question in Stockton on July 9th from one Jones, and paid $18 for it, taking Jones’ receipt for the money. It was competent on cross-examination to impeach the witness by showing that she had made statements inconsistent with her testimony, relative to the matter about which she had testified in chief, and the cross-examination was to lay the proper foundation. We see no error in the ruling.
4. The following instructions are objected to: “The court instructs the jury that the possession of stolen property recently after the commission of the alleged offense by the persons charged, if you find any such property to have been in their possession, if unexplained, is a circumstance tending to prove their guilt; and if the jury believe from the evidence that the defendants were found with the stolen property in their possession, if you find any was feloniously taken, then, to determine the weight to be attached to that circumstance as tending to prove guilt, the jury should consider all the circumstances attending such possession, proximity of the place where found to the place of the alleged burglary, the lapse of time since the property was taken, the character and nature of the property taken, whether the property was concealed, whether the parties denied or admitted the possession, and the demeanor and character of the accused. All of these circumstances, so far as they have been proved, are proper to be taken into account by the jury in determining how far the possession of the property by the accused, if it has been «proved, tends to show his or their guilt. ’ ’ The court also gave the follow
We concur: Haynes, C.; Gray, C.
For the reasons given in the foregoing opinion the judgment and order as to defendant Brady are affirmed and as to defendant Helms they are reversed.