241 P. 924 | Cal. Ct. App. | 1925
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *76
The appellant was found guilty of the crimes of robbery and burglary and appeals from the judgment and the order denying his motion for a new trial. This same action was before the supreme court (
[3] While the court erred in overruling appellant's objection to this question, we are of the opinion that the appellant was not injuriously affected thereby. The officer Murphy, to whom he testified he gave the false name, had already been called as a witness for the prosecution, and had testified that appellant had given the name of Williamson to him shortly after his arrest. This evidence therefore being already before the jury, the appellant was not seriously injured by being compelled to testify to what had already been given in evidence by the officer. Nor was it error in our opinion to permit the officer Murphy to testify to this fact. The evidence showed that just prior to appellant's arrest he was in the office of a diamond broker attempting to sell the diamond pin which he was charged with stealing. This office was on the ninth floor of the building. While there two officers entered the room and announced in the hearing of appellant that they were from the city detective bureau. Whereupon appellant hurried from the room out into the hall and then down eight flights of stairs closely pursued by the officers, who followed him through the lobby of a hotel situated on the ground floor and then out on to the sidewalk and across the street, where he was arrested by them, after he had assaulted them and attempted to avoid arrest by the use of force and violence. Upon his arrest, he was immediately taken to the police station and there give his name to the officers in charge as Williamson. Under these circumstances there was no error *78
in admitting the evidence complained of, as his statement giving a false name was made after the offense had been committed and evidently with knowledge on appellant's part of its commission. It must be considered in connection with and as a part of his attempted flight after he, with a stolen pin in his possession, found himself in the presence of the officers of the law. As was said in People v. Cox,
The further contention is made that the district attorney was guilty of misconduct, prejudicial to the rights of appellant, in his closing argument to the jury, and that his conduct was such that it prevented appellant from having a fair trial. Appellant specifies three instances in which he claims that the district attorney was guilty of misconduct. *79 First — In his reference to the appellant as "this innocent young man — this potential murderer." Second — In his reference to Dr. Young, accused of murder and whose case was then pending in said court. And, lastly, in his statement to the jury that if they suffered appellant to escape, they would make themselves responsible. In each instance, after the remark claimed to be improper had been made by the district attorney, the appellant made his objection thereto and specified the same as misconduct on the part of the prosecuting officer. The court in each instance sustained appellant's objection and instructed the jury to disregard the same. [4] As to the remark of the district attorney that the defendant was a potential murderer, we are not prepared to say that the use of these words on the part of the district attorney was not justified by the evidence before the jury. This evidence tended to show that the appellant had entered the room of Mr. and Mrs. McPherson during their absence, and after their return he pointed his gun at Mr. McPherson and threatened to kill him. According to the testimony of Mr. McPherson "he had his gun stuck right in my face or stomach, and he finally grabbed the pin, pulled it out of my necktie; demanded what money I had in my pocket with his gun stuck at me and turned around and rushed toward the door." He had previously pointed his gun toward Mrs. McPherson and said, "Drop that telephone." A person guilty of such conduct has no reasonable ground to complain if he is classified as a "potential murderer." [5] The reference of the district attorney in his argument to the jury to the case of Dr. Young was to the effect that he (the district attorney) expected to try the case of Dr. Young in the next three or four weeks, and that he predicted that there would be a plea of insanity in that case, because of the conclusive character of the case against Dr. Young. He further stated that the other defense which is familiar to prosecutors was that of an alibi. It is apparent that the case of Dr. Young and the character of the defense he might interpose to the charge against him had absolutely no connection with the case then pending against appellant. The reference thereto by the district attorney may accordingly have been improper. But we are unable to see that the appellant was materially or at *80 all prejudiced by this reference to the case of Dr. Young, even though the defense interposed by appellant was that of alibi. The court promptly sustained appellant's objection to said reference and instructed the jury to disregard the same. [6] As to the third and final remark of the district attorney of which appellant complains, we see no objection to it. The prosecutor told the jury if they suffered the appellant to escape, they would make themselves responsible. It was just another way of stating to the jury that the final determination of the case rested with them, and that they would be responsible for such final determination. The jury would be responsible if they acquitted the appellant, but in no less or greater degree than if they convicted him. This responsibility the law directly places upon the jury and upon them alone, and we can conceive of no impropriety on the part of counsel either for appellant or for respondent in reminding the jury that they have this important responsibility resting upon them.
[7] The third and final ground in support of his appeal is that the jury failed to find upon his plea of once in jeopardy. Upon the first trial of this action, the appellant was convicted, but on appeal the judgment was reversed. Appellant thereafter and before the second trial entered his plea of once in jeopardy by virtue of the first trial. On the second trial, the jury found him guilty as charged in the information, and rendered a verdict against his plea of once in jeopardy. From a judgment based upon this verdict, he again appealed and this second judgment was reversed. On the third trial, the one now under review, no evidence was introduced by appellant upon his plea of once in jeopardy and the same was not passed upon by the jury. The fact that appellant had interposed such a plea had apparently been overlooked both by the court and by counsel.
It has repeatedly been held in this state that "where a defendant accused of crime has interposed a plea of not guilty, and also a separate plea of `once in jeopardy' for the same offense, he is entitled to have the latter plea passed upon by the jury before judgment can properly be pronounced against him, and, where the jury found a verdict *81
of guilty without passing upon the plea of `once in jeopardy,' a judgment of conviction will be reversed, and a new trial granted." (People v. Tucker,
It has been so held even where no evidence was introduced or offered in support of the plea. (People v. Tucker, supra.) Since the above cases were decided, there have been some decisions of the supreme and appellate courts of this state which, while not directly overruling these cases, or for that matter even referring to them, appear to enunciate a somewhat different rule. In People v. Strickler,
[8] There is another provision of law which we consider applicable to this case. Section
The judgment and order denying motion for a new trial are affirmed.
Conrey, P.J., and Hahn, J., pro tem., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 31, 1925.