262 P. 369 | Cal. Ct. App. | 1927
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *603
The defendant was tried and convicted upon an information charging, in one count, that on or about the twenty-eighth day of February, 1926, the said defendant did burglariously, etc., enter a certain dwelling-house belonging to and occupied by one W.A. Lillard, in the county of Yolo, state of California; and in a second count, charging that the defendant, at the same time and place and in the same residence, in the immediate presence of W.A. Lillard and others, did commit the crime of robbery, in that the said defendant did unlawfully, forcibly, etc., take from the person, possession, and immediate presence of the said W.A. Lillard and others, certain personal property consisting of lawful money of the United States, firearms and jewelry, all of the value of about one hundred dollars, lawful money of the United States. The information was sufficient in form and substance to charge the defendant with the crime of burglary and also with the crime of robbery. The defendant's motion for a new trial being denied, an appeal is prosecuted therefrom, and from the judgment of conviction entered upon the verdict of the jury. This is the second trial of the defendant upon the information referred to, both trials resulting in conviction. The first trial resulted in a reversal upon appeal because this defendant and other parties charged with the same offense in a separate and distinct information were tried at the same time. (See People
v. O'Connor,
In the case at bar, under the recent constitutional amendment and the acts of the legislature passed in pursuance thereof, the chief justice of the supreme court, as chairman of the judicial council, is vested with a large discretion in directing trial judges to leave their own counties and proceed to some other county, and there hold court, where the calendars are more congested. The record in this case shows that the trial judge, under this constitutional provision, was taken from the county of Yolo and sent to the counties of San Diego and Los Angeles, there to hold court for such a period of time as to practically take him away from his own county and courtroom for the period of approximately fifty days during the sixty-day period immediately following the filing of the remittitur in this cause. That during said period of time trial judges were sent to the county of Yolo from adjoining counties for a limited period of time to attend to the routine business of the court that required immediate consideration, and the transcript shows that said judges not only attended to routine matters, but also tried several cases. The transcript further shows that there was no district attorney of the county of Yolo qualified to represent the People in the trial of the defendant in this action between the second day of May, 1927, and the sixth day of July, 1927. That it was necessary for the attorney-general to secure the services *610 of some attorney at law, sufficiently able and willing to undertake the prosecution of this action. That such attorney was not secured until on or about the twenty-eighth day of June, 1927. The record further shows that a delay of only five days occurred after the expiration of the sixty-day period before the trial of this defendant was begun. In view of all of these facts, if good cause is not shown for the delay, we do not really see how those words in the statute would ever find application. And in view of the fact that it has been found necessary for the chairman of the judicial council of this state to direct judges of smaller counties to go to larger counties and there assist in the clearing of the court calendars, it would be unreasonable to hold that if, in so doing, a delay of five days has been occasioned over the sixty-day period, necessitates the discharge of a defendant in a criminal action. Especially would this be true in view of all the circumstances disclosed by the record in this cause. We think that the circumstances of this case disclose that an appellate court should not hold that the discretion of the trial court in denying the defendant's motion to dismiss has been either improperly or arbitrarily exercised.
[2] That there is little merit in the defendant's contention that there was insufficient testimony to warrant conviction will appear from a brief recital of the facts set forth in the record. It appears in the evidence that on the twenty-eighth day of February, 1926, five men were seen in and about the dwelling-house occupied by W.A. Lillard in the county of Yolo. The residence of W.A. Lillard is situate on what is known as the Davis highway in said county. At about midnight on the twenty-eighth day of February, 1926, according to the testimony of one witness, four men entered the residence of said Lillard and proceeded to ransack the house. Another witness who was in a different room in said residence saw only three in the house. Of the three, one wore a mask or bandage over his face. The other two had no covering over their faces. These two were observed and identified by two witnesses. There were at the time in the Lillard house, and as a part of the Lillard family, W.A. Lillard, Mrs. Laura E. Lillard, and Tom Lillard. The men who entered the Lillard house were armed and the Lillards were commanded *611 to keep quiet. The record sets forth fully how the Lillards were intimidated by the threatening attitude of the armed men, which need not be set forth herein, further than to say that the men secured a number of articles such as money, jewelry, revolvers, pearl beads, and the like from the Lillard home. While the robbery was being perpetrated a man by the name of J.A. Nunes, an employee of the Lillards, and who resided in a small house on the Lillard ranch not far from the Lillard residence, had returned by automobile from Capay Valley. The testimony of Nunes is to the effect that he returned to the Lillard ranch shortly before 12 o'clock; that as he turned off the highway toward the house which he occupied on the Lillard ranch, he noticed a "Hudson" open car standing alongside the Davis highway, which we have heretofore mentioned (which, by the way, is an improved state highway), and that at that time one man was sitting behind the steeringwheel of the automobile, parked, as just stated, and a second man was walking around or standing in front of the automobile. That on his way to the Lillard ranch he passed this automobile, and as he passed the parked "Hudson" automobile the persons referred to were in the positions which we have just stated. Mr. Nunes testified further that after he had put his car in the garage he noticed a light in the Lillard residence; that just after he had gone into his own house to go to bed he was called by Tom Lillard; that he got up and went to the Lillard house, and there he found that the premises had been robbed; that the Lillards had been tied up, etc. The record further shows that immediately after the robbery the persons engaged therein drove away from the Lillard residence on the Davis highway in a westerly direction; that at a place about three and one-half miles from the Lillard residence the "Hudson" automobile was overturned and five persons who had been riding therein were discovered a few minutes thereafter, one of whom was dead, killed by the overturning of the "Hudson" automobile, and the others more or less injured; that the defendant Brock was seriously injured. One of the persons engaged in the robbery, named John Franks, pleaded guilty; three of the persons alleged to have been engaged in the robbery, to wit, Herbert Fitzgibbons, James O'Connor, and this defendant, Edward *612 Brock, were tried and found guilty, as heretofore stated, and secured a reversal upon appeal to this court. The record shows that many of the articles taken from the Lillard home were found scattered about the wrecked automobile. The watch taken from the Lillard home was found on the person of the man who was killed. The pearl beads were taken off the person of the defendant Brock. The testimony in this particular shows that the defendant Brock, who was seriously wounded, was taken to the Woodland Sanitarium, and the testimony as to the pearl beads is as follows: "Q. Here are some pearl beads; do you know anything about these? A. Yes, those were taken off Mr. Brock in the sanitarium at the Woodland Sanitarium — out of his pocket." The testimony of the witness Howard is to the effect that at about 12:30 o'clock on the night of February 28, 1927, he was driving along the Davis highway, and at a turn therein, about three and one-half miles from the Lillard home, he discovered the wrecked automobile and the wounded man to whom we have just referred. That the automobile was turned over; was bottom-side up; that the lights were still burning; that he noticed a number of persons there, and that the defendant Brock was pinned under the car under the back seat; that he assisted in taking the wounded men to a place where they could be cared for. The record further discloses that the defendant Brock stated to the witness Grove and other persons that he was riding in the back seat of the automobile. As before stated, the testimony shows that among the articles taken from the Lillard home was a string of pearl beads. This recital may be summarized as follows: Three men entered one room of the Lillard residence. According to another witness four men entered another room. Two of the men referred to were identified while they were in the Lillard house. Two men were seen at the "Hudson" automobile, one sitting behind the wheel, the other in front of the machine. We know by common experience that such persons are called "lookouts." The robbery occurred a few minutes after 12 o'clock; at 12:30 that same night the automobile in which the five men were riding was found wrecked three and one-half miles from the Lillard residence, the defendant, one of the number, stating that he had been riding with other of the defendants, whom he named, in the rear *613 seat of the automobile; that after the defendant was taken to the sanitarium a string of pearl beads, like those taken from the Lillard home, was found in his pockets. It also appears from the record that the defendant stated he was willing to plead guilty of burglary but not of robbery. With these facts in the record we do not see how it can be seriously contended that there was not sufficient evidence to submit this cause to the jury and warrant the jury finding the defendant guilty as charged. It is true that no one identified the defendant Brock at the Lillard residence, that no one saw him enter the residence, nor does it appear that the witness Nunes identified the two persons whom he saw with the "Hudson" automobile, but the circumstances and admissions which we have set forth lead inevitably to the conclusion that the defendant was one of the five persons engaged in the robbery.
The objection to the admission of the testimony relating to the robbery, the articles taken from the Lillard home, the articles found at the scene of the wrecked car, and where the different articles were found, is so utterly without merit that we will take no time in the discussion thereof further than to say that the finding of the wrecked automobile, the parties who were riding therein and the taking from the persons of the different defendants, including the pearls taken from the person of the defendant, all tended to show who were engaged in the perpetration of the robbery.
[3] It is further objected that the court erred in admitting testimony to the effect that the defendant stated to Dr. Stanley and the witness Grove that he would plead guilty to the crime of burglary, but not to robbery. This statement of the defendant appears to have been made in response to a statement made to him by Dr. Stanley, and also by the witness Grove, that if he would come through and plead guilty and go to San Quentin, he would receive better medical care than they were able to give him at the Woodland Sanitarium. It does not appear that any promise was made to the defendant, or that any hope of a lighter penalty would be imposed by reason of anything which was said to him by either Dr. Stanley or the witness Grove, and nothing that the defendant said could be held to be a confession. But whether the court erred in this *614 particular or not, we think that under the facts which we have set forth, no prejudicial error was committed, and that section 4 1/2 of article VI of the constitution applies. [4] The alleged misconduct of the special prosecutor for the People refers to what was said by counsel during the argument of the cause to the jury. In setting forth all the facts and circumstances pertaining to the case, counsel stated frequently that such facts were undenied. The point is made that as the defendant did not take the witness-stand or make any denial, such argument came within the prohibition of the statute where it is provided that the fact that a defendant does not take the witness-stand shall not be considered as a circumstance against him. However, there is no merit in this objection. See 8 Cal. Jur., page 269, section 330, where it is said: "It is not improper, however, for a district attorney to state that certain evidence of the prosecution is uncontradicted, or to point out that incriminating circumstances have not been explained by any sworn testimony." This is not commenting upon the failure of the defendant to take the witness-stand, but a simple statement of the fact that the evidence against the defendant stands uncontradicted by any testimony. The text above quoted is amply supported. We do not need to cite authorities that a conspiracy to commit a crime may be established by proofs of acts and conduct; that it was not necessary to show an express agreement between the parties; that if all the facts and circumstances taken together show that certain persons took part in the carrying out or perpetration of any crime, such as acting as lookouts, standing guard at an automobile, or sitting in an automobile ready to drive away at a moment's notice, while other persons enter a near-by residence and there perpetrate the robbery; that all the persons thereafter make their escape from the scene of the robbery and are found a few minutes later in the wrecked car, including all the circumstances which we have detailed in this opinion, the conclusion that all the persons referred to were conspirators is unescapable. No other testimony is needed.
[5] It is finally urged that the court erred in instructing the jury in relation to the inferences to be drawn from the unexplained possession of stolen property shortly after the time of the robbery. This objection is based upon the *615 erroneous allegation that none of the stolen property was found upon the person of the defendant Brock. The incident of the pearl beads appears to have been entirely forgotten. The instructions on the subject of possession of stolen property given by the court are but a repetition of instructions which have been approved times without number, and do not need to be set forth herein.
[6] The objection that the venue was not proven is likewise without merit. The testimony of the witness W.H. Lillard is to the effect that on the twenty-eighth day of February, 1926, he was living at what is known as the Lillard residence; that he resided in Yolo County; that the residence was in Yolo County between Davis and Winters. The testimony of Thomas W. Lillard is to the same effect. The residence referred to was then described as the residence robbed on the night of February 28, 1926, as hereinbefore set forth in this opinion. That this sufficiently shows the venue, we need only cite one case, People v.McGregar,
The verdict of the jury and the judgment of the court in this case being just, and we think amply supported by the law and the evidence, the order and judgment of the trial court are affirmed.
Hart, J., and Finch, P.J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on January 14, 1928, and the following opinion then rendered thereon:
THE COURT.
Appellant, upon petition for rehearing, calls attention to a stipulation by counsel purporting to correct the official record in this case, certified to by the trial court as being correct. The stipulation of counsel is to the effect that the witness Grove, called for the prosecution, actually testified that a certain string of pearl beads was taken from the clothing of one of the defendants accused of participation in the Lillard robbery, named Franks, whereas the record certified to by the trial court makes this witness testify that the beads were taken off of the person of the defendant Brock, and bases his petition for a rehearing thereon. While this manner of correcting a record does not appear to be provided for in *616 any of the codes, we will, nevertheless, accept the stipulation as showing the true facts, and for that purpose —
It is hereby ordered that that portion of the testimony in the opinion which, as filed, reads as follows:
"The pearl beads were taken off the person of the defendant Brock. The testimony in this particular shows that the defendant Brock, who was seriously wounded, was taken to the Woodland Sanitarium, and the testimony as to the pearl beads is as follows: `Q. Here are some pearl beads; do you know anything about these? A. Yes, those beads were taken off Mr. Brock in the Sanitarium, at the Woodland Sanitarium — out of his pocket'" — be corrected to read as follows:
"The pearl beads were taken off of the person of the defendant Franks. The testimony in this particular shows that the defendant Franks, as well as the defendant Brock, were taken to the Woodland Sanitarium, and there the pearl beads were found, the testimony being as follows: Q. Here are some pearl beads; do you know anything about these? A. Yes, those were taken off Mr. Franks in the Sanitarium, at the Woodland Sanitarium — out of his pocket."
It is also further ordered that that portion of the opinion reading as follows:
"This objection is based upon the erroneous allegation that none of the stolen property was found upon the person of the defendant Brock. The incident of the pearl beads appears to have been entirely forgotten," be corrected to read as follows:
"This objection is based upon the allegation that none of the stolen property was found upon the person of the defendant Brock. That the evidence which we have referred to shows concerted action and proper to be submitted to the jury, establishing conspiracy, and hence, that the possession of one would be the possession of all, is overlooked."
The ruling of this court in the case of People v. Haack,
After a careful review of this case, we do not find that the error in the transcript nor the corrections made by stipulation and here accepted for the purposes of this opinion, affect in any way the substantial rights of the parties to this cause. We think the evidence shows beyond any reasonable doubt whatever that the defendant was one of the participants in the robbery and that he was properly convicted.
The petition for rehearing is denied.