29 Cal. 622 | Cal. | 1866
Lead Opinion
The Court did not err in refusing to exclude the Chief of Police with the other witnesses. The exclusion of witnesses on the part of the prosecution, on the motion of the defendant, is not a matter of absolute right in all cases, but rests very much in the discretion of the Court, which may be exercised in favor of the defendant’s application or not, according to the circumstances of the case. (1 Greenleaf on Ev., Sec. 432.)
Nor did the Court err in refusing to discharge the defendant at the close of the testimony for the prosecution. The testimony of the accomplice was corroborated by other evidence in regard to several particulars, which at least tended to connect the defendant with the commission of the offense charged.
Nor did the Court err in sustaining the objection of the District Attorney to the testimony of the witness Bruce offered for the purpose of impeaching the testimony of Burke. The proper foundation for the admission of such testimony had not been laid. (1 Greenleaf on Ev., Sec. 462.)
Indictment for burglary.
The indictment would have been bad on demurrer had one been interposed, upon the ground that it contains two separate offenses: 1—burglary; and 2—grand larceny. At common law there are two kinds of burglary: 1—Complicated
Recalling a jury and charging them, as to a new issue.
Nevertheless, after a careful examination of the record, we are satisfied that there was sufficient error at the trial to justify us in setting aside the verdict. We are satisfied that the defendant was in fact tried for one offense and found guilty of another. He was tried for burglary and found guilty of grand larceny. This is especially apparent from the instructions of the Court given at the close of the argument. That up to that time the defendant had been regarded by Court, counsel and jury as on trial for burglary only, does not, in our judgment, admit of doubt. The statutory definition of burglary was first read to the jury, and they were then told in substance “ that if they found from the evidence that the defendant in the nighttime of the 3d of March, 1865, broke and entered the outhouse mentioned in the indictment, or without
After the jury had been out three hours without being able to agree upon a verdict, without any request on their part for further information upon any point of law, or any disagreement between them as to any part of the testimony, (see the four hundred and eighth section of the Criminal Practice Act,) all of which clearly appears from the record, they were recalled into Court by order of the Judge, of his own motion, and against the protest and under the exception of the defendant’s counsel, and then told for the first time, in substance, “that the indictment covered two offenses, burglary and grand larceny, of which the former was the higher and included the latter; and that they might, therefore, if they so found the case from the evidence, find the defendant guilty of grand
From the foregoing, which is fully sustained by the record, in our judgment, we are able to draw but one conclusion, which is, as has been already stated, that up to the time the jury was recalled the case had been conducted entirely upon the theory that the defendant was on trial for but one offense, and that that offense was burglary; and further, that the idea that he might also be tried for grand larceny was not suggested until after the case had been argued by his counsel and formally given to the jury. That so sudden a shifting of the issue, without time for further argument, might operate to the legal prejudice of the defendant, does not admit of doubt. That it may have done so is apparent from the fact that on the question of burglary the jury were out three hours without being able to find a verdict, while on the question of larceny they immediately agreed.
Larceny not included in burglary.
It is proper to add in this connection that the learned Judge of the Court below was mistaken in supposing, as he seems to have done, that this case was within the four hundred and twenty-fourth section of the Criminal Practice Act, which provides that “ in all cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment.” * * * Larceny is not necessarily included in burglary, like manslaughter in murder, within the sense of the statute; on the contrary it is no part of it. The offense of burglary is complete without any larceny being committed. The relation contemplated by the statute does not exist between burglary and such other felony, if any, as may chance to be committed by the defendant at the same time.
Judgment reversed and a new trial ordered.
Concurrence in Part
I am unable to concur with a majority of my associates in respect to the point upon which the judgment is reversed.
The Court having charged the jury, they retired, in custody of an officer, to consider the case. After deliberating some three hours without being able to agree upon a verdict, the jury were called into Court by direction of the Judge, and a further charge given, as follows : “ The indictment in this case covers two offenses, burglary and grand larceny. Of the two offenses burglary is the highest, and includes the larceny. You may therefore in this case, if the evidence warrants you -in so doing, find the defendant guilty of burglary; or, if you do not find from the evidence that the defendant was guilty of the crime of burglary, but you do find from the evidence that he was guilty of the crime of grand larceny, you may so return your verdict accordingly.” The defendant objected and excepted: firstly, to the giving of any further charge after the jury had once retired; and secondly, to the charge as erroneous. As to the first objection, section four hundred eight of the Criminal Practice Act provides that, if after the jury have retired for deliberation, “ They desire to be informed on any point of law arising in the case, they must require the officer to conduct them into Court;” and it thereupon makes it the duty of the Court to give the information. Thus the Court is authorized and required, in certain contingencies, to give a further charge. In this case the Court gave further information upon a point of law, and we do not think the authority of the Court was in any respect transcended, even if there was no request on the part of the jury to receive further information.
At common law it was admissible for the Judge to give a further charge after the jury had retired, provided it was given in open Court, and it was often done privately by the Judge. But the latter practice has been very properly condemned. (2 Grah. N. Tri. 356, et seq.; Kirk v. State, 14 O.
But the Court said : “ The indictment in this case covers two offenses—burglary and grand larceny. Of the two offenses burglary is the highest, and includes the larceny.” And it is insisted that the expression “ burglary is the highest ” is erroneous, for the reason that the degree must be determined by the severity of the punishment, and the imprisonment for larceny may be for a longer period than for burglary. But, however this may be, the particular statement is wholly immaterial and could not have affected the verdict. The important question was whether the indictment in fact embraced the crime of grand larceny; and it is perfectly clear that it did. It charges that the said defendant “ forcibly, feloniously and burglariously did break and enter with intent the goods, chattels, etc., in said house, etc., feloniously, forcibly and burglariously to steal, take and carry away, etc., and then and there forcibly, feloniously and burglariously did steal, take and carry away,” etc. The whole charge included a burglary and larceny—a part, a larceny included within the whole. No question is made as to the propriety of including the two offenses in the same indictment.
As to the proposition that the case was tried upon the theory that the indictment charged a burglary only, I only deem it necessary to say, that the evidence, as well as the indictment, covers both offenses, and that we do not know that the case was tried upon such theory. An ox had been slaughtered in the evening and hung up in an outbuilding, the door of which was closed and locked, and the key deposited in a place accessible to any party knowing where it was. The