105 P. 617 | Cal. Ct. App. | 1909
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *471 In a brief of exceptional merit it is earnestly contended by appellant that he has not had a fair trial. "Prejudiced," declare his counsel, "by the misinstructions of the court and by the court's refusal to give proper instructions and by the outrageous and villainous misconduct of a juror, the defendant was deprived of a just consideration of his case. The verdict is contrary to the evidence because there is no evidence that defendant abetted or advised anyone to steal. The verdict is contrary to the facts, because receiving or disposing of stolen property is not larceny. The verdict is contrary to law because the defendant has been once in jeopardy."
These various propositions are methodically presented with citation of numerous authorities. The consideration of some of the points discussed is deemed unnecessary, but the following we regard as of vital importance:
1. On December 18, 1907, Miller Lux caused a complaint to be filed in the justice court against defendant, charging him with the larceny of four mules branded HH. On January 23, 1908, defendant was held to answer, and on the 30th following an information was filed in the superior court to, which a plea of not guilty was entered. On April 6, 1908, the *472 trial was begun. The jury disagreed and on April 10th it was discharged, the minutes of the court showing that they "came into court and state to the court that they are unable to agree upon a verdict and further state that it is impossible to ever reach a verdict, whereupon it is ordered by the court that they be and they are hereby discharged from further consideration in this case."
On June 5, 1908, the district attorney made an application for a dismissal of the information "in furtherance of justice as provided in section
On the same day another complaint was filed in the justice court charging the defendant with the same larceny. He was held to answer and another information was filed to which a plea of "once in jeopardy" and of not guilty were entered. The trial resulted in a verdict of guilty and for the people, under the direction of the court, on the plea of "once in jeopardy."
In support of his contention that he is entitled to the protection of article I, section 13, of the constitution, providing that "no person shall be twice put in jeopardy for the same *473
offense," it is insisted in the first place by appellant that jeopardy attached for the reason that the jury was discharged without legal consent, the rule being as stated inPeople v. Webb,
Appellant, however, admits that the jury may be discharged because of their inability to agree upon a verdict and jeopardy will not attach, but it is insisted that this rule can have no application here, for the reason that "The court did not hear any legal evidence or try the issue or make any finding on the question whether or not the jury could agree, but dismissed the jury summarily, on the same day of the submission of the cause, without the consent of the defendant." But it does appear that the jurors stated to the court that it was impossible for them to agree, and we cannot say that their statements were unworthy of belief. We must assume that the court was entirely satisfied that any further effort to secure a verdict would be futile. The statute does not provide just what proceeding shall be taken to determine the probability of an agreement, but no better method occurs to us than to obtain from the jurors an expression of their judgment, and the court, in the exercise of the discretion committed to it, may give such weight to this opinion as the surrounding circumstances seem to demand.
Again, although the jury should not be discharged until the court is satisfied that an agreement is not probable, still the law does not require an express finding by the court that the jury could not agree, and for that reason were discharged. Section
It may be remarked that the minutes introduced in evidence in the case at bar do sufficiently show that the jurors could not agree, although in view of the presumption as to the regularity of the proceedings of a court of record and of the rule imposing upon the appellant the burden of showing error affirmatively, since nothing appears to the contrary, it would be presumed, if necessary to support the judgment, that the defendant consented to the discharge of the jury.
A more serious question arises from the fact that the information was dismissed and the second trial was had upon another information based upon a new complaint in the justice court charging the same offense. The proceeding is quite unusual, and no doubt should be adopted only when substantial and exigent reasons seem to demand it. The attorney general seeks justification for the course pursued in section
In the case of People v. Schmidt,
In that case, however, it is said: "But it was also proved that the information upon which he was convicted contained no allegation that the homicide had been committed with 'malice aforethought,' nor were any words of equivalent import used in it to describe the crime; the information was therefore fatally defective."
In People v. Campbell,
In People v. Smith,
The foregoing cases are certainly authority for holding — if authority other than the provision of the statute is needed — that the dismissal of an information in the interests of justice is not a bar to another prosecution for the same offense. Nor does it signify that "the defendant," as stated by appellant, "was not the actor in any matter that laid the foundation for the plea, but, on the contrary, all the proceedings taken that created and compelled the jeopardy were done against his wishes and without his act or consent." If there had been a conviction of the defendant upon the first information it would indeed have been a bar to another prosecution *476
unless it had been set aside at his instance; but the case is entirely different where the jury disagree and are discharged by the court. Then the status is the same as though there had been no trial at all, and no consent of the defendant is required to justify the court in dismissing the case under said section
As far as the depleted condition of the treasury is concerned, we cannot give our adherence to the view that this is a sufficient ground for the course pursued. The right of an individual charged with a crime to a speedy trial without unnecessary delay and embarrassment is surely as urgent and important as that of a creditor of the county to have his just demands promptly liquidated. The other reasons urged by the district attorney are more meritorious, but it would have been much better if they had been embodied in an affidavit and made the basis for an application to have the cause continued a reasonable period for trial. Thereby the investigations could have been completed, the additional witnesses probably secured and the necessity avoided of adjudicating the vexatious question now presented.
But passing this, the statute provides that the order "as provided in this chapter" is not a bar, and the mandate in reference to said order is that it must contain the "reasons of the dismissal."
We have no authority to disregard this requirement or to hold that it is merely directory. The proceeding is somewhat harsh, and imposes an additional burden upon the defendant, and no substantial departure from the plain provision of the statute should be tolerated.
In the case of People v. Jordan,
*477 [48 P. 499], is to the same effect, although the court sustained the demurrer "with leave to the district attorney to file a new information." It was held, however, that the mandate of the law must be respected in a matter affecting the substantial rights of the defendant.
Here there is no pretense that the order of the court recites the reasons upon which it was based. It is true the record shows the grounds upon which the motion was made by the district attorney, but nothing in the order shows that these grounds were, or any of them was, the basis for the action of the court.
There is an objection by the attorney general that "once in jeopardy" was not sufficiently pleaded. Section 1017, subdivision 4, of the Penal Code provides a simple form for such a plea. The defendant followed substantially the language of the code, but instead of specifying simply the "time. place and court," he set forth all the facts, including the specific times, places and courts in any way relating to the plea, so that even laymen could understand the import of the plea. The only valid objection that could be urged against it is that it contains more than the law demands, but this does not deprive the defendant of the right to have it considered.
It is to be observed that this is no "technical" objection to the proceedings as the term "technical" is commonly understood, but it relates to an important rule of procedure which the legislature has provided for the guidance of the courts, and the omission to observe it cannot be held to be innocuous without an invasion of the authority of a co-ordinate branch of the government. If the practice of which complaint is made is to be continued, it is manifest that great abuse is likely to follow, more dangerous to society than even the acquittal of the guilty.
2. Complaint is made of various rulings of the court in admitting evidence over the objection of appellant. Conceding some of the rulings to be erroneous, the error seems to have been without prejudice. We, therefore, forego any specific consideration of them and devote our attention to the following instructions given by the court: (A) "The court instructs you that in determining whether the defendant is guilty of the larceny of said animals, as charged, I instruct you that it is not necessary for the people to prove *478 that the defendant actually participated in the act of leading or driving away the animals from the possession of their owner. If you believe to a moral certainty and beyond a reasonable doubt, from all of the evidence and circumstances of the case, that the defendant knew, at the time said animals were placed in his pasture, if they were placed there, that the same had been feloniously stolen and driven away from their owner, and that the defendant did thereafter aid and abet the thief in taking and driving said animals to the pasture on the river, known as the 'Service' pasture." Again, (B), "If you are satisfied from the evidence beyond a reasonable doubt and to a moral certainty, that at the time the defendant took the animals mentioned in the information from the Hatch Service pasture to the corral of Mr. Gordon, if he did take them or assisted in doing so, he did so with a felonious intent, and if you further find that such taking was prior to the thirty-first day of October, 1906, and in the county of Madera, and that at said time said animals were the property of Miller Lux, Incorporated, a corporation, then I instruct you that the offense of grand larceny is complete as charged. It is no excuse for the felonious taking of personal property that such property had been previously stolen by some person other than the person accused, if the person accused thereafter himself feloniously took, stole or drove away said property, and it makes no difference whether such taking was done with or without the consent of the person who previously stole the same." These instructions are separated by another instruction upon a different subject. The first one, which we have marked A, is not complete, but the latter clause plainly implies that if the jury believe the facts therein stated, they must find the defendant guilty of larceny. The first sentence in the instruction is not open to objection, as it is not necessary that the defendant actually participate in the act of leading or driving away the animals; it is sufficient if he aided and abetted its commission or, not being present, advised and encouraged the commission. (Pen. Code, sec. 31.) But the criticism of appellant is directed at the second clause, which in effect holds, so it is claimed, that one who does not participate in any manner in the original taking, but subsequently receives the property into his possession knowing it to have been stolen, is guilty of larceny the moment he moves it from one spot to another while it is so in his *479 possession. "The pawnbroker who has never heard of the stolen watch before it is brought to him and he is told it is stolen is guilty of larceny the instant he takes it from the counter and puts it in the show-case to sell." It is insisted that this is not the law, and that in order to constitute larceny there must be some participation, either directly or indirectly, in the original taking. It is undoubtedly true that the instructions must be considered in the light of the facts disclosed by the evidence, and it is often properly held that an instruction, although erroneous as an abstract proposition of law, is not prejudicial because it is apparent from the record that it could not have influenced the verdict of the jury.
In the case at bar, however, there was no evidence of the actual participation of the defendant in the original taking from the possession of Miller Lux, and it was conceded by the people that the mules were brought by a Mexican to defendant's place and left there to be pastured. Some days after that they were taken to what was known as the Service pasture, and about six weeks thereafter they were taken to the Gordon corral mentioned in instruction B.
The jury must have understood from instruction A that though defendant had no connection whatever with the original caption and no knowledge of it at the time, yet if he afterward received into his possession the property with knowledge then that it had been stolen and subsequently participated in the disposition of it, he is guilty of larceny. But the instruction is erroneous because it presupposes that the larceny had been completed before defendant had any guilty knowledge of it. In fact, it assumes that the mules "had been feloniously stolen and driven away" before they were received into defendant's pasture, and, the asportation having been terminated, that the defendant aided the thief in getting rid of the property. No man can be guilty, as principal, of a crime who has no knowledge of it until the crime is fully consummated. The facts set forth in the instruction constitute the crime of receiving stolen property and nothing more.
In Tucker v. State, 21 Tex. App. 699, [2 S.W. 893], defendant was convicted of theft, his defense being that he bought the animal in question from two strangers. Defendant asked the court to instruct the jury as follows: "If you *480 find that M. A. Tucker drove up the yearling in question, and that defendant, after it was brought to his lot, opened the gate, and had nothing to do with the original taking and driving, you will acquit; and this is so, no matter what connection defendant had with it thereafter." The appellate court said: "This sixth requested instruction was directly pertinent and applicable to the facts proven, and presented the law in a concise and pointed manner to the vital issue in the case, . . . and we are of the opinion it was error to refuse to give said instruction."
In Boyd v. State, 24 Tex. App. 570, [5 Am. St. Rep. 908, 6 S.W. 853], it is said: "The prosecution, however, being for theft, and it being absolutely essential in support of that charge to connect the defendant with the original taking to warrant his conviction, without such proof of connection any subsequent guilty connection with the stolen animal, such as a receiver of the same, or as to the party who had illegally altered the mark or brand, would not be sufficient to warrant the conviction for theft. To inculpate a defendant as a principal offender in the crime of theft, the state must show that he had some connection with or complicity in the taking of the property. It does not suffice to prove that subsequent to the taking, and without complicity therein, but with knowledge that the property had been stolen, he aided the taker to dispose of it."
In People v. Maxwell,
In People v. Stakem,
In People v. Ward,
In People v. Horton,
The instruction marked B is equally objectionable as the one we have been considering. It assumes that the third asportation with a felonious intent would constitute larceny. The second paragraph of the instruction, abstractly considered, may be a correct exposition of the law, but it was liable to be misapplied by the jury in view of the evidence. It is true that after the original taking was completed the defendant might have stolen the property. If, for instance, he had feloniously taken it from the possession of the Mexican, it would be larceny and the ownership could have been laid in the latter or in the real owners, Miller Lux. But a defendant cannot "feloniously steal and take property" — necessary to constitute larceny — which is already in his possession. Applying it, however, to the facts, the jury were likely to conclude from this portion of the instruction that a felonious disposition of the property after it had been stolen by another was larceny. Respondent cites the case of the People v. DelCerro,
In State v. Grant, 76 Mo. 236, it was held that "a larceny may be regarded as still in process of accomplishment so long as the original caption is still unbroken and the original asportation is still in progress"; and in State v. Trexler,
Among other instructions the defendant requested that the court give the following, which was refused: "The jury is instructed that if you believe that the only part that the defendant took in the alleged larceny was that he, after the said mules were stolen, aided or assisted the person who stole them in selling or disposing of them, or participated in the profits thereof, then he cannot be convicted of grand larceny, and in such case you will acquit the defendant." As this states a correct principle of law, and as there was evidence to which it would apply, we think it should have been given.
In conclusion, we deem it proper to state that the evidence of larceny by defendant is slight; there is at least more evidence *483 against him of the crime of receiving stolen property, and if it should be deemed advisable to prosecute him for this latter offense, the former conviction, of course, would not be a bar.
The judgment and order are reversed.
Hart, J., and Chipman, P. J., concurred.