157 P. 7 | Cal. Ct. App. | 1916
This case, as set forth in the transcript, reveals a strange story. It reads as though it were a tale of medieval brigandage. Defendant and one F. W. Kirkman, riding in an automobile on the morning of May 26, 1915, near the city of Merced, saw approaching in a buggy F. W. Henderson, a prominent attorney of said city, who was on his way from his home in the country to his office in Merced. Appellant and Kirkman, alighting from the machine, approached the head of the horse that he was driving and, both pointing pistols at Henderson's head, demanded that he get out or they would kill him. He was then compelled to get into the automobile which contained two seats and had side curtains. He was then required to write a note to his stenographer giving an account of his absence. Kirkman and Fisher then handcuffed him to an iron rail attached to the seat of the automobile. Fisher then drove Henderson's horse and buggy into Merced and delivered said note to the stenographer and, thereafter, he walked to the outskirts of the city and rejoined the occupants of the automobile. From this point the machine was driven along the public highway until the city of Stockton was reached and, while making a turn from one street to another, Henderson managed to get the door open and he jumped headlong out, Fisher ineffectually attempting to grab him. Kirkman was driving and temporarily lost control of the car, with the result *137 that it collided with an iron lighting post and was brought to a standstill. Kirkman and Fisher took flight and the former has not been apprehended. Fisher was arrested in Los Angeles and convicted in the superior court of Merced County upon an information charging that he "did willfully, unlawfully, feloniously, maliciously, forcibly and fraudulently take, entice and carry away one F. W. Henderson, with the intent then and there to restrain said F. W. Henderson, and thereby to commit extortion and robbery from said F. W. Henderson, and to exact from the relatives of said F. W. Henderson, money, lands, promissory notes, deeds, real property, personal property, and other valuable things."
It is not disputed that therein is properly set forth the offense contemplated by section
Mr. Henderson does not say that the conspirators or either of them declared an intention to resort to extortion or robbery, but certain facts related by him and by other witnesses furnish mute but persuasive testimony that such was the intention. At least, from the many circumstances appearing in the record, it cannot be said that the inference drawn by the jury was or is unreasonable. As a striking example of these significant circumstances we may refer to some of the articles that were found in said automobile. There was a telephone apparatus by which telephone connection could be had through the wire running at the side of many of the public roads, also a complete telephone directory of the city of Merced. There were also many promissory notes in favor of Kirkman for large sums of money, needing only the signature of some promisor to make them complete. There was also a complete map of the land owned by Henderson, and a deed containing an exact description of land owned by the mother-in-law *138 of Henderson, without any signature thereto. To the foregoing we may add the fact that, while Henderson was being taken along the highway as before described, defendant Fisher attempted to induce him to drink some wine which was afterward found to contain chloral, a drug producing sleep. When they passed other machines Henderson was also compelled to hide his handcuffs and himself as much as possible. Considering these things in connection with the forcible abduction of the prosecuting witness, it is not strange that the jury found a verdict of guilty as charged. Indeed, any other verdict would have been surprising.
It is true that while being spirited away Henderson was told that he was being taken to some indefinite place in order that his affidavit to certain facts might be obtained. We need not go into the details of that, however, as it has never yet been held that the jury is bound to accept at its face value such self-serving declarations of one charged with a crime. Besides, it may be added, the story was so whimsical and improbable that it could justly be disregarded and repudiated.
Of course, it is not necessary for the purpose charged in the information to be accomplished in order to make it effectual as an element of the crime. All that is required is that some overt act be done toward the execution of the purpose and the fulfillment of the intent. The forcible removal of Mr. Henderson, and the other preparations indicated by what was found in the automobile, satisfy the requirement of the law in that respect. It may be illustrated by the proof of intent in burglary. Therein if the defendant is charged with the entry of a building with intent to commit larceny there must be the overt act of entering the building before a conviction can be had, but from this entry under suspicious circumstances the jury may infer the intent to commit larceny although no larceny was actually accomplished.
There is no more merit in the other contention as to a declared instruction of the court. It seems that the instructions of the court by stipulation were taken down in shorthand and afterward transcribed by the official reporter and filed with the clerk. Among these appears the following: "I charge you, gentlemen, that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid or abet in its commission, or, not being present, *139 have advised and encouraged its commission, are principals in any crime so committed."
This is the contention of appellant: "In this instruction, the jurors were told that an accessory was one who aidedor abetted in the commission of a crime, and we submit that the learned judge thereby transgressed the plain letter of the statute. He read to the jury section
The rule is stated in People v. Dole,
Appellant was justly convicted of a villainous and dastardly crime, and it requires no small degree of patience and forbearance to treat with serious consideration the technical reasons urged for a new trial. The judgment and order are affirmed.
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 4, 1916.