243 P. 878 | Cal. Ct. App. | 1925
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *93 James Hovermale and Roy Smith were charged jointly with the crime of robbery by an indictment returned by the grand jury of Los Angeles County. The prosecution proceeded with the trial against Hovermale in the absence of Smith, who at that time had not been apprehended. From the judgment of the court upon a verdict of guilty, and the order denying his motion for a new trial, defendant Hovermale prosecutes this appeal.
From the record it appears that on the evening of November 7, 1923, between the hours of 7:40 and 8:00, a Pasadena Short Line car of the Pacific Electric Railway Company was boarded by three men at Valley Junction, a stopping point in a sparsely settled section of Los Angeles City. Immediately upon the car getting under way one of the trio passed rapidly through the car to the front platform, the other two remaining on the rear platform. A few minutes after the car had started, and while the conductor was occupied in collecting fares, a report was heard similar to that of an exploding track torpedo. The conductor immediately turned to go to the rear platform but was confronted by one of the two men, who had boarded the car at the last stop, with a revolver and a command, "Hands up!" About the same time the man who had passed to the front of the car was seen pointing a revolver at the motorman. The third one of the trio proceeded immediately through the car relieving passengers of their money and jewelry. When the bandits began their operations it was first noticed that all three of them had dark-colored handkerchiefs tied across their faces, covering the nose and lower portion of the face. The bandit who covered the conductor seemed to be the one who directed operations, as he gave *94 commands to the conductor and passengers, as well as directed the work of the one who was relieving the passengers. He was described as a young man weighing about 150 pounds, standing five feet six inches to five feet seven inches in height. As it was the theory of the prosecution that this one of the trio was in fact the defendant Hovermale, we will not give space to a detailed description of the other two bandits. After the passengers had been relieved of their valuables, the operation occupying ten or fifteen minutes, the motorman was ordered to slow down his car and thereupon all three bandits left the car and disappeared in the darkness.
The defense offered by the defendant was that of an alibi.
Appellant does not urge, as a ground of appeal, the insufficiency of the evidence to support the verdict. His contentions for a reversal of the judgment are based upon: First, alleged errors committed by the court during the trial in the admission of certain testimony; second, errors committed by the court in giving certain instructions and in refusing instructions requested by the defendant; and, third, misconduct on the part of the district attorney during his argument to the jury.
[1] Considering the points in the order named, our attention is directed to certain questions propounded by the district attorney in the cross-examination of one C.R. Godfrey, a witness produced on behalf of the defendant, and whose testimony was given by deposition. The questions objected to, as well as practically all of the questions propounded to the witness in cross-examination, were for the purpose of impeachment. The first one of the questions objected to, as well as the answer, is as follows: "Q. Do you know one H.W. Fifield? A. I do. Q. Did you not state to H.W. Fifield early in January or February, 1924, that you drove the machine at the time of the Pacific Electric holdup on November 7, 1923? A. No."
To the latter question the defendant objected on the ground that "it was incompetent, irrelevant and immaterial, hearsay and if intended for impeachment purposes no proper foundation has been laid, and it is intended to impeach on an immaterial matter." The court overruled this objection and the defendant now assigns that ruling as error. The witness in his direct examination testified that the defendant *95
Hovermale was his brother-in-law and that on November 7, 1923, between the hours of 6 and 11 o'clock P.M., during which time the alleged robbery took place, the defendant with his family was visiting with the witness at the witness' home in Monrovia. The question objected to was for the purpose of impeachment and was both relevant and material. It is, however, urged that no proper foundation was laid for impeachment purposes. As to the elements of time and persons present we feel the objection is without merit. (Plass v. Plass,
[2] The defendant next urges that his objection to the following question: "Did you not also tell H.W. Fifield in the same conversation, at the same time, all of the details of the Pacific Electric holdup? And also say to him that James Hovermale held a gun on a motorman?" should have been sustained.
The defendant urges that the question calls for the opinion and conclusion of the witness and the overruling of his objection to the question was prejudicial error. While the first question does call for a conclusion of the witness, it was one of a series of questions that had been propounded on cross-examination and relating to the time, place, and incidents of the alleged holdup. As previously stated, these questions were all propounded, in cross-examination, for the purpose of laying the foundation for impeaching the witness. To each and all of the questions so propounded to the witness on cross-examination he gave negative answers. He consistently and positively denied any knowledge of the holdup, or of having made any statements concerning the same or any purported details of it to Fifield, or that the defendant Hovermale had been involved in it. Appellant cites, in support of his contention on this point, the case of People v. Nonella,
[3] It is next urged by the defendant that the admission of the testimony of one H.W. Fifield, which purported to give an entire conversation with C.R. Godfrey, was highly prejudicial to the defendant. This testimony was offered by the district attorney for the purpose of impeaching the testimony of the witness Godfrey who had testified in direct examination on behalf of the defendant, that the defendant, his brother-in-law, with his family, were visiting at Godfrey's home at the time of the robbery. The court, in overruling the defendant's objection and admitting the testimony, clearly stated that it was admitted solely for the purpose of impeachment. But appellant urges that the jury might, and in effect did, consider this testimony as bearing directly on the question of defendant's presence at, and participation in the robbery. It may be admitted that jurors untrained in legal matters may not grasp the points of differentiation in the rules of evidence, and, further, jurors may intentionally or ignorantly permit evidence to influence them in the consideration of the defendant's guilt in a manner contrary to the instructions of the court. But this inference, for manifestly it is nothing more than an inference, does not destroy the right to have evidence introduced for a limited purpose. This, indeed, is quite common in both civil and criminal actions, and when the case is being tried before a jury, the possibility that the jurors may make improper use of the evidence is usually met, by the party likely to be affected, with a requested instruction from the court directing the jury to consider the admitted evidence only for the purpose for which it was admitted. We have carefully examined the record in this case and do not find any request made *98 by the defendant of the court to instruct the jury that the testimony of Fifield could only be considered by them for the purposes of impeachment of the testimony of one Godfrey. Manifestly, where no such instruction was requested, the defendant cannot at this time complain of any injury that he may consider that he has suffered by reason of a possible inference that the jury may have misused the evidence introduced.
[4] The next group of errors has to do with instructions requested by the defendant and refused by the court. The first instruction referred to reads as follows:
"The court instructs the jury that the defendant has introduced evidence in this case in support of his defense of an alibi; an alibi means that the defendant was elsewhere than at the place where the crime charged was committed at the time of its commission, and that therefore he could not have committed it. The rule is that, if the testimony addressed to the alibi is sufficient to raise a reasonable doubt of the defendant, James E. Hovermale's, presence at the scene of the crime at the time it was committed, then a reasonable doubt of his guilt arises, and he is entitled to an acquittal."
This instruction was refused by the court on the ground that it was "substantially covered." The instruction given reads as follows:
"It is the contention of the prosecution that the defendant committed the crime charged in the City of Los Angeles. The defendant, on the other hand, has introduced evidence for the purpose of showing that he was in the city of Monrovia at the time when it is charged that the crime was committed.
"The defendant could not have been in these two places at the same time; and in this contradiction of witnesses the jury has to determine for themselves where lies the truth. In so judging, they will take into consideration the appearance and apparent candor and fairness of the respective witnesses; the probability or improbability of their statements; its coincidence or failure to coincide with other facts or features of the case which they may deem established; and generally those rules of ordinary experience and general observation by which intelligent men decide as to controverted propositions of fact." *99
The instruction given sufficiently covers all that was necessary on the mere question of alibi; but it does not advise the jury that if the evidence tending to establish the alibi was sufficient to create a reasonable doubt that the jury should acquit. However, it does appear from the general instructions in several places that the court instructed the jury that if they were not convinced beyond a reasonable doubt of the guilt of the defendant they should render a verdict of acquittal. Manifestly, if the jury believed that the defendant was in Monrovia at his brother-in-law's house on the evening of November 7th, or if they had any reasonable doubt upon the question of his being there, they could not possibly have concluded beyond a reasonable doubt that he was one of the trio who perpetrated the robbery.
Appellant has cited the case of People v. Visconti,
[5] Appellant complains of the refusal of the court to give the following instruction:
"The court instructs the jury that under the laws of this state, evidence of the oral admissions of a party to an action ought to be viewed by the jury with caution, and if you should believe beyond a reasonable doubt that the defendant, *100 James E. Hovermale, has made any admissions to witnesses testifying in this case, you will so consider such testimony."
Appellant concedes that the refusal of such an instruction has been held not to be prejudicial error. It was so held in People
v. Ruiz,
[6] Appellant urges that the court committed prejudicial error in refusing the following instruction:
"The court instructs the jury that the presumption of innocence with which the defendant, James E. Hovermale is clothed throughout the trial of this case, goes with you in your retirement to consider your verdict, and you must examine the evidence in this case in the light of that presumption."
The case of People v. McNamara,
[7] The third point urged by appellant, as a ground for reversal, has to do with certain statements made by the district attorney in his argument to the jury and which statements are assigned as prejudicial error. We have carefully *101 examined the criticised remarks but find no merit in appellant's contention that they were prejudicial to his rights.
Judgment and order denying defendant's motion for a new trial are affirmed.
Conrey, P.J., and Curtis, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on January 28, 1926, and 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 February 25, 1926.