263 P. 306 | Cal. Ct. App. | 1928
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *224 The defendant Earl V. Grace was charged by an indictment filed by the grand jury of Los Angeles County with the crime of robbery. From a judgment of conviction and the denial of his motion for a new trial he makes this appeal.
Events happening in connection with the robbery and the arrest of the defendant material to this appeal may be briefly stated as follows: About 9 o'clock on the evening of February 28, 1925, the complaining witness, A.J. Maes, who was engaged in the grocery business in the city of Los *225 Angeles, was going to his home, which was located a short distance from his place of business. Just as he left his grocery store he was met by two men, one of whom accosted him and made some remark about paying him a bill. Maes recognized this man as a neighbor by the name of Newell, but was evidently suspicious of the men, for without stopping to reply, he continued on to his home. Just as Maes reached the front porch of his house, which was about forty feet from the front sidewalk, his attention was attracted by the two men following him. As he stepped on his porch, one of these men, whom Maes states was the neighbor Newell, demanded his money, while the other man, a stranger to Maes but subsequently identified by Maes as the defendant Grace, pointed a revolver at him. Thereupon Newell relieved Maes of about $125 in currency, a number of checks, some keys, two membership cards in the Chamber of Commerce and other personal effects. The holdup occupied but a few minutes, during which time an electric light was burning on the porch above where the men were standing. Within an hour after the robbery Newell was arrested by two policemen, Walter S. Schubert and J.F. Koehn. There was found on his person the money, checks, and other articles taken from the complaining witness. Newell confessed the robbery and, as it appears from the rebuttal testimony, informed the officers that Grace was his partner in the robbery, and that he could be found at 330 North Lorena Street. Thereupon, accompanied by Newell, officers Koehn and Schubert went to the house at 300 North Lorena Street, arriving there about 11:30 P.M. These officers testified that just as they drew up in front of the house in question, the electric lights in the house suddenly went out. Koehn went to the front door and knocked. After a moment's waiting the door was not opened and Koehn then forced the door open. At the same time that Koehn went to the front door, Schubert went to the rear door, through which he gained admission to the house without difficulty. In the house, which was a five-room bungalow, were three sleeping rooms. In one of these rooms a man and woman were found in bed. In another several men were found and in the third three men were found lying on the bed and underneath the bed Grace was found hiding. *226 The officers in searching through the bed found a .38 caliber revolver under the pillow, and in one of Newell's pockets four cartridges were found which fitted the revolver. The revolver was identified by the prosecuting witness as similar in appearance to the one that was used when he was robbed. After some discussion between the officers, Grace and the other occupants of the house, the officers took Grace and Newell to the police station, and they were subsequently charged by information with the robbery. Newell plead guilty to the charge, while the defendant Grace stood trial.
Before discussing the legal questions involved on the appeal it becomes necessary to give a brief resume of certain dates and events in connection with the first trial, appeal and reversal of the judgment of conviction.
The original information charging both Newell and Grace with the crime was filed on April 3, 1925, and on April 20, 1925, the defendant Grace was arraigned and plead not guilty. At the time of his arraignment the trial judge ordered that the defendant Grace be first put on trial for his sanity. For some reason, which does not appear in the record, this order of the court was ignored, and the defendant was put on trial for the offense on July 15, 1925. He was found guilty as charged, and an appeal was taken from the judgment of conviction. On May 5, 1926, the district court of appeal,
Appellant urges as his first ground for reversal that the trial court erred in not dismissing the information in which the defendant Grace was jointly charged with Newell of the offense of robbery; and, second, that the court erred in sustaining the district attorney's objection to certain records which appellant offered in evidence in support of his plea of once in jeopardy. Both of these points are more or less related in the discussions by appellant in his brief, and we will deal with them together.
[1] We are of the opinion that the trial court erred in not granting the motion of defendant to dismiss the information. (Inre Begerow,
But we cannot agree with him that the wrong he suffered through the erroneous ruling of the court in connection with the information attached in any way to the indictment and the proceedings had thereunder. Section
Nor does the fact that the indictment was returned before the information was dismissed, and without any order of the court, affect the situation. (People v. Follette,
Appellant further contends that the court erred in not permitting him to put in evidence the record of his first trial for the purpose of supporting his special plea of "once in jeopardy." The language used by counsel for the defendant in offering the record in question, as also the remittitur from the court of appeal reversing the judgment in the first case, indicates that he contended: First, that the proceeding which resulted in a verdict of conviction by the jury, even though reversed by the court of appeal, operated in law as having put him once in jeopardy; and, second, that the delay of some nine months in bringing the defendant to trial under the charge in the information operated also in law as having placed him "once in jeopardy." [2] It has been determined through a somewhat extended line of decisions in this state that a person on trial for an offense, when the judgment of a former conviction of the same offense has been reversed, cannot effectively claim that he was "once in jeopardy" by reason of his first trial. This subject has been so fully discussed by this court, as well as the supreme court, that we feel that a mere reference to several of these cases meets all of the requirements of this opinion. (People v.Frank,
[3] As to his second point under this head, that the unwarranted delay in according him a second trial under the information furnishes him in law the ground to contend that he was "once in jeopardy," we feel does not warrant any extended consideration, as we can see no merit in such a contention.
Appellant urges that the indictment should have been dismissed because he was not accorded his trial within sixty days from the date of the filing of the indictment. It appears from the record that the indictment was filed on April 4, 1927; that in due course the defendant was arraigned and plead not guilty. At the time of his plea he filed a *231 motion to dismiss the indictment. It appears that this motion was submitted on briefs and on May 3d the motion to dismiss was denied and a demurrer to the indictment overruled. Subsequently the case was set down for trial on June 3d, which was within the sixty-day period. The minutes of the court in connection with this case on June 3d read as follows: "Motion to dismiss indictment is interposed, and motion is continued to June 6th, 1927. Witnesses are instructed to return." On June 6th appears the following entry in the minutes: "Motion to dismiss indictment comes on for hearing and is denied." Following the denial of defendant's motion to dismiss, he went to trial before a jury on June 6th.
[4] We submit that from this record the appellant is not in a position to seriously contend that he was deprived of a trial within the sixty-day period. The minutes of the court indicate that the court was ready to start his trial on June 3d when he interposed his motion to dismiss, and apparently for some reason, and we must assume that it was a sufficient reason, the hearing on the motion was continued until June 6th, which was apparently the first court day subsequent to June 3d. Manifestly the delay in starting the trial after the sixty-day period had elapsed was due to appellant's own action in filing a motion to dismiss. He cannot now be heard to complain because of the delay occasioned in the hearing of his motion.
Conceding, however, that the court erred in continuing the trial beyond the sixty-day period, we are satisfied that no miscarriage of justice resulted by reason of such delay. The error, if any, is one of procedure and readily comes within the purview of subdivision 4 1/2 of section VI of the constitution. (People v. Zuvela,
[5] Appellant further urges that in any event he was entitled to have the jury make a finding upon his special plea of "once in jeopardy," and in support of this contention cites the case ofPeople v. Tucker,
While it is true in the instant case on appeal appellant did offer in support of his special plea the record of the proceedings of his former trial and conviction, this was not legal evidence that could furnish support for his plea of "once in jeopardy," as we have heretofore stated. Hence, the evidence offered being incompetent, there was in effect no evidence as a matter of law tendered to the jury in support of the plea of "once in jeopardy," and under the authority of People v.Frank, supra, the failure of the jury to find on that issue has not prejudiced the appellant. (People v. Strickler,
Appellant complains of certain rulings of the trial court whereby J.F. Koehn, Walter Schubert, and Rudolph Sieger, police officers, were permitted to relate incidents connected with the arrest of Newell and certain alleged statements made by Newell to them at the time of and immediately after his arrest, the defendant Grace not being present on these occasions. This testimony unquestionably was hearsay testimony, and the defendant's objections thereto should have been sustained unless it comes within one of the exceptions wherein hearsay testimony may be given. *233
The attorney-general in his brief urges that the testimony was properly admitted; first, because Newell was a co-conspirator and there being testimony before the court that Newell and Grace had committed the holdup, a foundation had been laid that would entitle the state to offer testimony of statements made by a co-conspirator; and, second, that the testimony was properly admitted for the purposes urged by the district attorney that it tended to impeach the testimony given by Newell as a witness for the defense.
[6] The rulings could not be justified on the ground that the testimony purported to give statements of a co-conspirator, for the reason that it appears that the conversation between Newell and the officers, which the witnesses Koehn and Schubert undertook to relate, occurred after the robbery, and it is well settled that only statements made by a co-conspirator during the existence of the conspiracy may be offered in evidence. These conversations having occurred subsequent to the completion of the robbery were hearsay, and not admissible. (People v. Oldham,
[7] However, we are satisfied that the testimony was properly admitted for impeachment purposes. Newell was put on the stand by the defendant, and in his direct examination he testified that the defendant Grace was not with him on the night of the robbery and did not participate with him in the holdup of Maes; that his partner in the robbery was one Edward Miller. The witness further undertook to describe the appearance of Miller, as also the clothing he wore on the night of the robbery. The sole and only purpose of Newell's testimony was to support contentions of appellant that he was not one of the two who committed the crime. On cross-examination Newell was asked by the district attorney if he had not stated to Officers Koehn and Schubert at the police station shortly after his arrest, in substance, that his partner in the holdup was the defendant Grace, and that Grace at the time of the robbery wore a brown khaki shirt and cap, and whether he did not further say to these officers at the same time and place that Grace was staying at number 300 North Lorena Street, and that he, Newell, would take the officers to where Grace resided, but that he would not testify against him. Newell denied *234 having made any such statement, or statements to that effect, to the officers. Upon rebuttal the district attorney put on the witness-stand Officers Koehn and Schubert, who, in response to the questions which had been asked of Newell for impeachment purposes, testified that Newell had made such statements to them. We are satisfied that the testimony was properly admitted for impeaching purposes. It is true that such testimony would not have been properly admitted for the purpose of proving that Grace did participate in the robbery, but the record clearly shows that the district attorney offered it solely for impeaching purposes. Unquestionably had the defendant's counsel so requested of the court it would have been the duty of the court to have instructed the jury that this testimony was admitted for a limited purpose, and that they did not have the right to consider it for any other purpose than that of affecting, if at all, the credibility of the witness Newell. We have examined the record and find that no such instruction was requested by the court, and hence the appellant at this time is not in position to find fault, if perchance the jury failed to consider the evidence for the limited purpose offered.
[8] As to the testimony of officer Sieger which is complained of, it appears that his testimony was limited to matters attending upon the arrest of Newell. Nowhere in his testimony does he mention Grace, or make reference to any matter that in any way tended to connect Grace with the robbery. While it is true that for these reasons it might well be held that his testimony concerning the arrest of Newell was immaterial in this case, we cannot see wherein this testimony could be regarded as prejudicial to the rights of the defendant.
[9] Appellant also criticises the fact that the court permitted Officer Koehn on his direct examination to testify that when in company with Newell they reached the house at number 300 North Lorena Street, Newell pointed to the house and said: "There is where Lacey lives; there is where he stays." (It appears from the record that defendant Grace was sometimes known as Lacey.) Counsel for the defendant objected to this statement of the witness, and the court immediately ordered that it be stricken out and *235 the jury was instructed by the court to disregard this testimony. We are justified in assuming that the jury followed the instructions of the court.
[10] The next point urged by appellant is set forth in the following language: "The identification of the defendant by the prosecuting witness Maes was uncertain and weak." While the prosecuting witness Maes in the trial gave positive testimony that he recognized Grace as being one of the two men who held him up, there is some conflicting testimony as to what occurred when on the morning after the robbery Maes was taken to the city jail where Grace was confined, and asked to identify him, if possible, as one of the two men who robbed him. Manifestly the question as to the weight to be given the testimony of the complaining witness in the matter of identification is for the jury to decide, and it would be an improper invasion of the jury's sphere for this court to interfere with the finding. We are satisfied that there is sufficient evidence to support the jury's finding that Grace was one of the two who held up the complaining witness.
[11] Appellant next contends that the court erred in giving certain instructions to the jury relating to the issue of insanity, and in refusing certain instructions upon the same subject requested by appellant. The court instructed the jury that: "The burden of proof as to the defense of insanity rests upon the defendant and it must be proved by a preponderance of the evidence." This instruction has been repeatedly held to correctly state the law as to the burden of proof, and the weight of evidence required when the defendant offers the plea of insanity as a defense in a criminal case. (People v. Sloper,
The foregoing instruction, in substance, has had the approval of this court, as well as the supreme court of this state. (People v. Zari,
We do not deem it necessary to discuss in detail the refused instructions. These instructions were drafted upon the theory that the burden shifted to the prosecution after the defense had put in evidence the record of the defendant having been committed to the insane asylum, and upon the further theory that if there was any reasonable doubt in the mind of the jury as to the insanity of the defendant, this doubt should be resolved in favor of the defendant. It has been repeatedly held, in fact it is no longer a controverted matter in this state, that the burden of supporting a plea of insanity when presented in a criminal prosecution is upon the defendant, and that in order to sustain this burden he must show by a preponderance of the evidence that at the time of the commission of the act he was insane. (People
v. Willard,
But one further point is urged which we feel merits attention, and that is the alleged misconduct of the district *237 attorney during the trial, and in his argument before the jury. It is first contended that when the district attorney in his argument to the jury referred to and commented upon the testimony of Officers Koehn and Schubert given on rebuttal concerning the alleged statements made by Newell at the time of his arrest, his conduct constituted such error as was prejudicial to the rights of the defendant. As we have already held the testimony was properly admitted, it naturally follows it was the proper subject of comment.
[13] Appellant further contends that when the district attorney in his argument to the jury referred to him as a "criminal," a "desperado," and a "denizen of the underworld," his conduct was such as to constitute prejudicial error. The district attorney in referring to the defendant in the language above quoted undoubtedly allowed himself to go beyond the sphere of proper argument of the evidence in the case. We cannot say that this language constituted prejudicial error. It appears from the record that the defendant admitted on the witness-stand that he had been convicted of and served a term for burglary in the state prison at San Quentin; also that he had plead guilty to a charge of receiving stolen property and had been confined as a narcotic addict. It would undoubtedly aid in maintaining the dignity of the court if counsel in their argument to the jury would confine themselves to a reasonable discussion of the evidence presented in the case and omit the use of epithets and the calling of names.
[14] Appellant, in concluding his brief, complains that the court did him an injustice in permitting a witness for the prosecution to refresh his memory from the transcript of the evidence taken at the preliminary hearing and in refusing a similar right to a witness for the defendant. In our examination of the record we do not find any ruling of the court which justifies this criticism. Moreover, if perchance such a ruling was made, we do not see wherein it would possibly constitute reversible error. [15] Also as to the criticism made that the court should have granted appellant's motion for a "directed verdict," the first answer would be that there is no provision in law for the court to direct a verdict in a criminal case, and if appellant means by the term a "directed verdict" that the court *238 should have advised the jury to return a verdict of not guilty, then the answer would be that there was abundant evidence to support the verdict of guilty and hence it would have been improper for the court to advise a verdict.
We find no reversible error in the record, and for that reason the judgment and order refusing a new trial are affirmed.
Houser, Acting P.J., and York, J., 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 March 1, 1928.
All the Justices concurred.