28 Cal. 265 | Cal. | 1865
Lead Opinion
By the Court,
I. The defendant was indicted for the crime of grand larceny. A demurrer was interposed to the indictment which was overruled by the Court. Thereafter, when called upon to plead to the indictment the defendant, acting under the advice of his counsel, declined to do so, and refused to put in any plea whatever. Thereupon the Court, of its own motion, ordered the Clerk to enter a plea of not guilty, to which counsel for the defendant objected and demanded that the Court should proceed in the manner designated in the two hundred and ninety-sixth section of the Criminal Practice Act and- pronounce judgment against the defendant. This the Court declined to do, and directed the plea of not guilty to be entered, upon which the defendant was thereafter tried and convicted. This action and ruling of the Court is assigned as error.
The two hundred and ninety-sixth section is in these words: “ If the demurrer be disallowed the Court shall permit the defendant at his election to plead, which he must do forth
It is presumed that the course taken by counsel was adopted under the notion that the foregoing section in some way interfered with the right of trial by jury guaranteed to the defendant by the Constitution, and was therefore void. Otherwise he would hardly have failed to have availed himself of the chances for his client’s escape afforded by that uncertainty which is sometimes supposed to' attend the verdict of a jury. The Court below seems to have come to the conclusion that the question was at least doubtful, and therefore gave the defendant the benefit of the doubt and afforded him ah opportunity to enjoy his constitutional right of trial by jury, notwithstanding the earnest protest of counsel.
It is insisted on behalf of defendant that the constitutionality of section two hundred and ninety-six is not involved in this case, and counsel decline to argue it, claiming that it will be in time to discuss that question when we meet with a judgment which has been rendered in accordance with its provisions, and that the only question presented by the record in this case arises upon the power of the Court to enter a plea of not guilty, under section three hundred and eight. But the point made, in our judgment, does involve a discussion of that section. The two hundred and ninety-sixth and the three hundred and eighth sections both relate to the same subject matter, and are to be read together. The latter section provides that: “ If the defendant refuses to answer the indictment by demurrer or plea, a plea of not guilty shall be entered.” Reading it, therefore, in connection with the former section, we have a complete rule for every case where the defendant when called upon to plead stands mute, or, as in the present case, orally refuses to plead. If, 'when arraigned, he stands mute or refuses to demur or plead to the indictment, a plea of not guilty is to be entered for him; but if he demurs and his demurrer is disallowed, he may plead or not, at his option, and if he stands mute or fail or refuse to plead, the Court is to proceed as upon a conviction or a plea of guilty
It is within the constitutional power of the Legislature to provide that the Court shall enter a plea for the defendant when he stands mute, or that such standing mute shall be taken as a confession of the truth of the indictment, and ecpiiv
From what has been said it follows that the Court could have lawfully pronounced judgment in the case as provided in the two hundred and ninety-sixth section, and ought to have done so, and that the Court erred in adopting the course which it did. But the consequence for which counsel for the defendant contends does not follow". This Court is not allowed to reverse a judgment where it is manifest that the error alleged has in no manner operated to the legal prejudice of the defendant. The defendant has been deprived of no right, nor has he been placed in any worse position by the error of the Court in giving him a fair trial by jury notwithstanding his confession of guilt. The trial was a mere idle ceremony, which did him no legal harm, and therefore affords no ground for a reversal of the judgment.
II. When the case was called for trial and before the examination of the jurors was commenced, counsel for defendant asked leave to withdraw the plea and to move to quash the indictment, because the names of all the witnesses who were examined before the Grand Jury were not indorsed upon it, and upon the further ground that the defendant himself had been examined before the Grand Jury touching the offense therein charged. It appears from the affidavits offered in support of this motion, that the defendant and one Louis Bergler,
So far as the motion was based upon the ground that the defendant had testified against himself before the Grand Jury is concerned, it is only necessary to say that we know of no rule of law which made it illegal for him to testify if he felt inclined to do so, nor do we know of any rule of law which makes the voluntary testimony of the defendant before the Grand Jury a ground for setting aside the indictment.
So far as the other ground is concerned, the motion came too late, as has been repeatedly decided. A motion to set aside an indictment upon this ground must be made before demurrer or plea (Criminal Practice Act, Sections 277, 278), and if not so made, the defendant is precluded from afterwards taking the objection (Section 280.) (People v. Freeland, 6 Cal. 98; People v. Lawrence, 21 Cal. 368; People v. Lopez, 26 Cal. 112.)
III. It is lastly contended that the judgment is void for uncertainty. The judgment is, “that the defendant be imprisoned in the State Prison for the term of three years from the date of his incarceration,” and it is claimed to be fatally uncertain as to the time when the term commences..
It is true, as contended by counsel, that the judgment ought to be certain, both as to the commencement of the term and as to its termination, but this rule does not require greater certainty than is possible under the circumstances, and we think the judgment in this case is quite as certain as it can be made. The punishment is imprisonment in the State Prison for the term of three years. It is very clear that the term cannot commence until the defendant arrives at that place, and that it cannot end until three years thereafter. When he will arrive at the State Prison is certainly more or less uncertain, but that is not the fault of the judgment, and as the Court has no;means hy which it can ascertain with certainty the precise moment at which that event will' happen, it would
Judgment affirmed.
By the Court,
Rehearing
on petition for rehearing.
Petition for rehearing. The counsel for the defendant admits the constitutionality of the two hundred and ninety-sixth section of the Criminal Practice Act; and further admits that the conviction would be well supported by the provisions of that section were the section now on foot. But it is claimed, in effect, that section two hundred and ninety-six is repealed by the Act of 1863.
It is provided by that Act as follows: “No"person can be convicted of a public offense unless by the verdict of a jury, accepted and recorded by the Court; or upon a plea of guilty; or upon judgment against him upon a demurrer to the indictment in the case mentioned in section two hundred and ninety-three.”
It is insisted by counsel that this amendment to the Criminal Practice Act purports, on its face, to "be a statement of the instances, and all of the instances, in which a person accused of crime can be said to have been “ convicted;” and it must be admitted that the point is well taken. It is further urged that it follows from the views maintained in the opinion, that the judgment below is not supported upon the first ground named in the amendment, for the opinion holds the verdict to be null and void. It is further urged that the judgment cannot be supported on the second ground, for it appears that there was no plea of guilty entered in fact; and it is claimed, finally, that the judgment cannot be maintained upon the third and last ground named in the amendment, for the reason that section two hundred and ninety-three, to which the amendment refers, states a case where a judgment is to be entered for the accused, and not against him.
The reference to section two hundred and ninety-three does not express the legislative intent. That intent finds expression only in section two hundred and ninety-six; and the amendment must be read as though the reference were to the latter Section instead of the former. But it is urged that to strike out the word “ three ” and insert the wrord “ six,” would be to amend the amendment, and not to construe it; and the point, considered abstractly, must be admitted to be well taken; but when considered on what may be called the facts of the question, and in view of the settled rules of construction, it is manifest to us that the objection is fallacious.
First—It must be assumed that the Legislature, in undertaking to state a third method, or instance, of conviction, intended to do it; but if it used the number two hundred and ninety-three advisedly, it neither accomplished, nor intended to accomplish, the object stated, nor any other, and the last clause of the amendment is not only a nullity, but was intended to be a nullity. But we are forbidden so to hold. (Smith’s Com., Sections 488, 527.)
Second—We have a voluminous Act upon the subject of Crimes and Punishments—and we have also Courts of criminal jurisdiction. From the constitutional and legislative provisions upon the subject of crimes and criminal Courts, there can be no doubt that it is and always has been the policy of the State, that the guilty should not go unpunished. But if it should be held that the reference to section two hundred and ninety-three expresses the true intent of the Legislature, then the whole of our criminal system is virtually overthrown, and every grade of crime may be committed with impunity;
Assuming, then, that the Legislature, by the last clause of the amendment, meant something, and something sensible— that is, something in harmony with the general purpose with a view to which our criminal system was got up and is now kept on foot, we are satisfied that it was intended to enact the third ground, or instance, of conviction set forth in section two hundred and ninety-six, but the Legislature applied to the section in which it is contained a wrong number. This view does not lie in assumption. It was the purpose of the amendment to state the cases in which a person, accused of crime, could be considered as “ convicted” to a legal intent, and to limit them to three. The amendment states two, and, so far as expression goes, it states a third. We must presume, to start with, that a third has been efficiently enacted, and we cannot conclude to the contrary, until the whole of the written law upon the subject of crimes and punishments, and criminal practice, has been examined and exhausted. We look to section two hundred and ninety-three, directly referred to in the amendment, but that section does not state a case of “ conviction,” but of “ acquittal” instead; but on looking through the whole body of the statutes we find one section, and but one, that is responsive to what may be called the governing call of the last clause of the amendment, to wit: a third instance in which a person accused shall be considered as convicted for the purposes of judgment; and we must, therefore, consider that to be the provision which the Legis
Petition denied.