219 P. 1033 | Cal. Ct. App. | 1923
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *711 The defendants were convicted on December 26, 1922, of the crime of robbery, the specific charge being that on or about the nineteenth day of June of that year, in the city of Los Angeles, they took from one G. C. Knight personal property of the value of $16.65 in gold coin of the United States. For purposes of intelligible reference we may denominate this the oil-station case.
On October 3, 1922, the same defendants pleaded guilty to grand larceny under an information consisting of three counts charging, respectively, grand larceny, robbery, and burglary, in that these defendants and one William Allen stole $25,000 worth of diamonds and jewelry on or about June 1, 1922, in said city of Los Angeles. This will be referred to as the Rowan case.
Sentences were pronounced in the latter case on October 10th and execution was stayed until the 17th, at which time defendants moved to dismiss the second and third counts, which motion was denied. The district attorney moved to set the cause for trial on said two counts, which was also denied, and he thereupon stated that the oil-station case was pending and had been set for trial on November 29th, and asked that execution in the Rowan case be stayed until December 1st, and the court so ordered. Through inadvertence and mistake of the clerk the order staying execution was not inserted in the minutes, and a commitment was issued and delivered to the sheriff, pursuant to which the defendants were removed to the penitentiary. November 25th an order was made directing the sheriff to return the defendants *712 from the penitentiary and produce them in court on the 29th of that month for trial, and the warden was therein directed to deliver them to the sheriff upon the production of said order. Defendants were accordingly brought into court as ordered, and on said twenty-ninth day of November a further order was entered reciting the oversight and directing that the minutes of October 17th be corrected so as to set forth the facts and the order staying execution until November 29, 1922. Defendants thereupon moved for a continuance, which was granted, and on December 1st they prayed for a further continuance on the ground that the court had no jurisdiction, which motion was denied; however, they were given until December 20th to prepare for trial. On this latter date the trial commenced and resulted in a verdict of guilty against both defendants.
From the final judgment of conviction and from an order denying their motion for a new trial, the defendants have appealed to this court.
The first ground upon which the defendants seek to reverse the judgment is that the trial court exceeded its jurisdiction in ordering and removing them from the custody of the warden of the state penitentiary, and forcing them to trial.
The minutes of the trial court show several continuances granted at defendants' request, and that on August 25th they consented to November 29th as the date of trial; when they appeared and pleaded guilty in the Rowan case, on October 3d, the district attorney's motion for stay of execution appears to have been granted. That both defendants were therefore fully cognizant of the status of their case and were at least constrained to anticipate the probability of a trial, they cannot consistently gainsay. The record does not warrant the inference, nor do the defendants contend, that they otherwise than silently submitted to removal to the penitentiary and return therefrom. [1] The authority of the sheriff, or of the warden, was at no time questioned, and after such acquiescence in the execution by those officers of the court's orders, they were too late to attack the validity of the removal proceedings or the jurisdiction of the court. In Ex parte Clark,
"No matter whether the superior court of San Francisco had the right to order the petitioner out of the custody of the Warden of the state prison or not, he was produced. An information charging him with an offense within the jurisdiction of that court was filed, and the court thereby became and was vested with the power and jurisdiction to try him, and its judgment is valid and binding. Therefore he cannot be heard at this late day to claim, in a proceeding of this kind, that the sheriff has no right to hold him under such judgment. Conceding that the warden of the state prison might have asserted his right to hold the petitioner under the commitment from the superior court of San Diego County, it is clear to us that the petitioner cannot escape the consequence of a valid judgment rendered against him, by showing that another valid judgment had previously been rendered which had not been fully executed."
"The jurisdiction of the court in which the individual is found is not impaired by the manner in which the accused is brought before it." (Mahon v. Justice,
Section
[2] Defendants next contend that they were induced to plead guilty to grand larceny, and to make statements, in connection with the Rowan case, by promises that they would not be prosecuted on any other charges, and that this constituted a bar to prosecution in the oil-station case. If the district attorney made such representations he clearly exceeded his authority in so far as binding his own office or the court was concerned. Defendants cite no authorities holding that a promise of leniency given by a prosecuting officer under such circumstances has ever been held to prevent prosecution for crime, and in determining this appeal we are not required to inquire into the ethics of the transaction, if, indeed, one took place of the character alleged.
[3] There is no merit in the assignment as error of the admission in evidence of purported confessions. This point is so closely allied with the contention last discussed that under the testimony of the defendants themselves it is unavailing. Certain officers testified that each of the defendants freely and voluntarily admitted his guilt in the instant case, and detailed the conversations over objections of counsel that they were not free and voluntary, but were induced by promises of immunity. Defendants' counsel vigorously demanded that the question be submitted to the jury for their determination as to whether or not such alleged confessions were voluntary. Each defendant testified positively that he made no statement of the facts in this case to anyone, and that he did not confess, as testified by witnesses for the prosecution. The court concluded that the statements, if made, were voluntary, but instructed the jury to disregard any expression of the court on the subject, and to determine as a question of fact, in accordance with counsel's request, whether either of the defendants confessed to his implication in the commission of this offense, and if so whether or not he did so freely and voluntarily.
Defendants complain of an instruction to the jury that if they believed from the evidence beyond a reasonable doubt that the defendants or either of them feloniously took from the person or the immediate presence of G. C. Knight the *715 property described, or any part thereof, as charged in the information, or aided, abetted, and assisted any other person or persons to so feloniously take from the person or the immediate presence of the said G. C. Knight, by means of force or fear and against the will and consent of Knight, the property mentioned, as charged in the information, then they should find the defendants guilty. It is contended that the court combined the cases of both defendants, in consequence of which a conviction of one would establish the guilt of the other.
[4] Standing alone, this language is ambiguous and susceptible of the construction placed upon it by defendants, but instructions are not to be read in isolated sections; they must be construed as given, and when as a whole they present the issues properly, there is no ground for reversal. (People
v. Hecker,
[7] We are informed that the sentences were cumulative, and authorities are cited to show that therefore the court exceeded its jurisdiction. But the sentences were not cumulative. They were in the ordinary form. The one dealing with the defendant Groves reads in part as follows: "It is therefore ordered, adjudged and decreed, that the said W. E. Groves be punished by imprisonment in the State Prison of the State of California at San Quentin for the term prescribed by law." The sentence of Sullivan is identical in form. Such sentences run concurrently with those *717
which the defendants were serving when tried in the present case. (Ex parte Casey,
[8] Two rulings of which appellants complain require but brief mention. A picture of the defendant Sullivan was introduced in evidence, and it is insisted that this was prejudicial to his rights. However, it does not appear that any objection was made at the time the picture was offered and received. In fact, it was introduced at the instance of defendants' counsel during the cross-examination of appellant Sullivan by the district attorney, upon his positive testimony that it was his picture.
[9] It is also claimed that the court erred in denying the defendants the right to impeach W. Maxwell Burke, a witness for the prosecution, but no foundation was laid for such impeachment.
From a reading of the entire transcript it appears that the evidence of the guilt of each of the defendants is clear and conclusive, and that no errors occurred in the trial of such a character as could have prejudicially misled the jury. Under such circumstances, section 4 1/2 of article VI of the constitution of California precludes a reversal.
The judgment is affirmed.
Finlayson, P. J., and Works, J., concurred.
A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 15, 1923.
