8 P.2d 493 | Cal. Ct. App. | 1932
This is an appeal from a judgment sentencing the defendant for the crime of robbery and from an order denying his motion for a new trial. The trial was upon the issue raised by the plea of not guilty by reason of insanity, the defendant having entered the plea of guilty. But two reasons are assigned why we should reverse the judgment, the first being that the court refused consideration of the instructions proffered by defendant because they were not tendered to the court until the beginning of defendant's argument, and the other that the court first refused to permit the defendant to testify, although subsequently the judge withdrew the ruling and permitted him to testify either on direct examination or in rebuttal.
Turning, therefore, to the argument first advanced, we find that the court based its action upon section 607a of the Code of Civil Procedure, added thereto by the legislature in 1929 and which reads as follows: "In every case which is being tried before the court with a jury, it shall be the duty of counsel for the respective parties, before the first witness is sworn, to deliver to the judge presiding at the trial, and serve upon opposing counsel, all proposed instructions to the jury covering the law as disclosed by the pleadings. Thereafter, and before the court has commenced instructing the jury, and before the commencement of the argument, counsel may deliver to such judge, and serve upon opposing counsel, additional, proposed instructions to the jury upon questions of law developed by the evidence and *16 not disclosed by the pleadings. All proposed instructions shall be typewritten, each on a separate sheet of paper. Any proposed instruction which is delivered to the judge at a time later than is provided for herein may be disregarded; but, in that event, the judge shall write upon the margin of such proposed instruction the fact that he refused to consider the same for the reason that the requirements of this section have been disregarded."
[1] In the present instance the court did indorse upon the instructions that consideration thereof was refused under the section quoted. Appellant claims, however, that section
"It is significant that, while the sections dealing with the subject as applied to Superior Court actions contain nothing as to exemptions from their provisions because of sex, those relating to Justice's Court proceedings do specifically provide that `no female can be arrested in any action' (sec. 861, Code Civ. Proc.). All of these sections were enacted as portions of the original code adopted in 1872 and while a few of them have been subsequently amended none of these amendments are relevant to the subject under discussion here. It is a familiar rule that the codes are to be construed as a single statute (Pol. Code, sec. 4480; People v. Central Pac. Ry. Co.,
"Applying these rules of construction it is evident that the exemption from civil arrest accorded `females' by section 861 of the Code of Civil Procedure applies only to actions in Justices' Courts, to which class of actions alone the article, chapter and `title' in which it is found relates. The judgment is affirmed."
It is suggested by the respondent that the rules of evidence laid down in the Code of Civil Procedure are applicable in criminal cases, hence there is no reason why the section here in question should not also be made use of, but this idea proves a boomerang. Section
[2] We now turn our attention to the question whether the appellant was prejudiced by the action of the court. The appellant calls our attention to two of his proposed instructions which he says the court should have given. The first one reads as follows: "In determining the question whether the defendant was insane at the time of the alleged commission of the robbery the jury are to consider all his acts at the time of, before, and since the alleged commission of the robbery, as such acts and conduct have been shown by the evidence, and the jury have the right to consider the defendant's appearance and actions during the trial as a circumstance in determining his insanity at the time of the robbery."
It is tremendously difficult to understand wherein the appellant was damaged by the failure of the court to give this instruction — and we may add that the claimed prejudice is not pointed out to us in the briefs. There was but the sole issue of the sanity of the defendant at the time of the commission of the offense. All evidence admitted by the court was pointed at this one ultimate fact. The jurors as reasonable men would surely consider all of the evidence bearing upon the point because it was applicable to no other, without being specially admonished so to do. And in so far as the last portion of the instruction is concerned, we have no method of determining whether the court considered the defendant's appearance and actions during the trial, under all the circumstances of the case to be too remote, or whether they were of such character as to warrant mention. We must presume in the absence of any showing to the contrary that the defendant was not damaged by the court's action in this particular.
[3] The other instruction proposed by appellant and refused by the court is to the effect that the burden is upon the prosecution to overcome any evidence offered by defendant to establish his insanity by competent evidence sufficient to satisfy the jury beyond a reasonable doubt of the *19
sanity of the defendant. Such is not the law. (People v.Wells,
[4] The last contention of appellant is that the court erred in refusing to permit the appellant to testify, basing its refusal upon the ground that the defendant claimed to be insane. On the following court day, however, the trial judge viewed the matter differently and stated to counsel as follows: ". . . [T]he defendant's counsel will be accorded the privilege at this time, if he so desires, to place the defendant on the stand, and may re-open his case so that he may use him on direct examination, if he desires, or may put him on in rebuttal." Prior to this ruling of the court, however, and evidently in anticipation of it, defendant's counsel said: "Before we approach the bench, I want to withdraw my proffer to put the defendant on the stand" and at the conclusion of the court's remarks counsel again stated: "Let the record show that the defendant feels that it is now too late for the defendant's case to be re-opened. In fact, the defendant does not choose to re-open his case for further direct examination. He has withdrawn his proffer of the defendant as a witness for the purpose of rebuttal after he has rested his case in chief. The prosecution has proceeded with their case and rested it, and the defendant now announces that he is ready to go to the jury `without further evidence'." This bald statement of the record is a complete refutation of appellant's argument. Not only did the court attempt by all the means within its power to right the situation but the defendant went further than to spurn the hand of relief. He actually withdrew the proffer, so as to leave no foundation whatsoever for the contention he now seeks to advance. We might expand at considerable length upon the supposition that counsel imagined he had led the trial judge into an error from which it was impossible for him to extricate himself, rather than that he was prompted by a sincere desire to elicit testimony from his client, but we shall rest content that the facts speak sufficiently for themselves.
Judgment and order affirmed.
Works, P.J., and Craig, J., concurred. *20