225 P. 767 | Cal. Ct. App. | 1924
The information in this action contained three counts, one charging the defendant with the crime of burglary in entering, with intent to commit larceny, the house of F. E. Ginder; the second, with the crime of grand larceny in taking, stealing, and carrying away certain personal property of the said F. E. Ginder; and the third, with the crime of burglary in entering, with intent to commit larceny, the house of Ellis Gray. The court advised the jury to acquit the defendant upon the burglary charges. The jury returned a verdict, however, simply upon the charge of grand larceny, finding the defendant guilty thereof, and failed to render any verdict whatever on either of the charges of burglary. A new trial was granted defendant upon the charges of burglary and they were thereupon dismissed by the court. Defendant has appealed from the judgment finding him guilty of grand larceny and from the order denying his motion for a new trial on said charge. His first assignment of error is that the evidence is insufficient to support the judgment.
The testimony in the case shows that one of the complaining witnesses, Ellis Gray, about the middle of February, 1923, missed certain articles of personal property from his house, and on the thirteenth day of March, 1923, the other of the complaining witnesses, F. E. Ginder, also missed from his house certain personal property which he had seen in his house on the day before. The property belonging to Ellis Gray, and which he had missed from his house, was afterward found in the possession of a second-hand dealer, to whom it had been sold by the defendant about the first of March, 1923. The property of Ginder was found in the defendant's room on the fifteenth day of March, 1923, at the time of the latter's arrest, at which time he told the arresting officers that he had bought the property about ten days prior thereto from a man by the name of Tex. The defendant at this time was placed under arrest, but on the way to the police station he escaped from the officers and was not rearrested until the following July. The defendant *203 did not testify in the case, nor did he introduce any evidence at the trial.
[1] It is defendant's contention that this evidence shows only that the stolen property was found in his possession, and he cites the well-established rule that mere possession of stolen property, however recent, is not sufficient to warrant a conviction of larceny. Defendant apparently overlooks the fact, established at the trial, that after his arrest he escaped from the officers. Flight of a defendant, under the circumstances proven in this case, is always a circumstance to be taken into consideration by the jury with the other facts proven in the case, in determining the guilt or innocence of a defendant. We think that there can be no question that evidence that the stolen property was found in the possession of the defendant shortly after the same had been stolen, coupled with evidence of the flight of the defendant after his arrest, was sufficient to justify the jury in finding a verdict of guilty. (People v.St. Clair, 5 Cal. Unrep. 294 [44 P. 234]; People v. Cox,
[3] The defendant takes exception to certain language used by the court just prior to the argument of the case before the jury, as follows: "I want to say to you that the court has considered the evidence in this case, and in view of the information and commitment and evidence in the case, has decided to advise the jury to render a verdict of not guilty upon count No. 1 and upon count No. 3 of the information (being the counts charging burglary), . . . you will be advised to consider only the question of whether the defendant is guilty or not guilty of the crime of larceny as charged in count two of the complaint. I make that statement at this time in order that you may understand why counsel do not argue that phase of the case." *204
Defendant contends that the court by the above statement invaded the rights of the jury by intimating to them that while, in the opinion of the court, the evidence was not sufficient to justify the submission to them of the charges of burglary, yet it was sufficient to warrant the consideration by the jury of the charge of grand larceny. The only statement made by the court, regarding the evidence, it will be observed, was made in connection with his statement to the jury that he would advise them to render a verdict of acquittal upon the two burglary charges. This was followed by a further statement of the court that under the advice of the court they would only consider the question of defendant's guilt upon the charge of grand larceny. The law makes it the duty of the court to advise the jury to acquit the defendant if, at any time after the evidence on either side is closed, it deems the evidence insufficient to warrant a conviction. (Pen. Code, sec.
[4] Defendant further complains that the court, by advising the jury to acquit the defendant of the burglary charges, must have believed that the defendant did not take the goods from the house of Ginder, the complaining witness, and that unless he did take the goods from Ginder's house, he would not be guilty of larceny. We are not advised of the reasons upon which the court based its instruction to advise the jury to acquit the defendant upon the burglary charges. Neither are those reasons essential to the decision of this appeal. The court might have erred in so advising the jury, but if so its action was favorable to the defendant and he cannot complain. There was no error on the part of the court upon the evidence before it in submitting to the jury the charge of grand larceny, and that is the only question that concerns us at this time.
[5] The contention of defendant that the court erred in refusing to direct the prosecution to elect between the different charges set forth in the information is without merit. (Pen. Code, sec.
[6] The only remaining question to be considered on this appeal is the objection made by the defendant to the remarks of the deputy district attorney in his argument to the jury. As we have before noted, the defendant did not take the stand at the trial. In his argument before the jury the deputy district attorney conducting the prosecution made the following statement: "I am not allowed to comment on the fact that this defendant did not take the stand, and I do not so comment —" Upon the objection of the defendant the court instructed the jury to disregard this remark of the prosecuting officer. Whereupon the latter, continuing his argument to the jury, stated, "I am merely stating a fact, and it is a fact —" The defendant again objected to the remarks of the attorney and the court sustained the objection and admonished him not to refer to the subject again. Defendant now assigns this conduct of the deputy district attorney as error prejudicial to his rights. There can be no question that these remarks of the prosecuting officer were in direct violation of the express mandate of section 1323 of the Penal Code. No prosecutor, in his zeal to secure a conviction, should allow himself to so far forget his duty, both to the defendant as well as to the public, as to transgress the plain provisions of this statute upon this subject. While the courts of this state have uniformly held such improper conduct on the part of the prosecuting officer to be error, they have not in all cases held it to be such error as to entitle defendant to a reversal of the judgment. A recent case decided by the supreme court lays down the rule as follows: "It has been the disposition of this court where timely objection was not made or where the court has, by appropriate instructions to the jury, withdrawn such improper comment from their consideration, to deny a reversal, if the evidence in the case was such as to clearly support a conviction." (People v. Mayen,
[7] The deputy district attorney, in his opening argument to the jury, also made the following statement: "There is evidence here also of the kind of a man this defendant is; there is evidence here that he goes to a pawn shop; that he there sells other goods which are stolen; that he there signs another name, not his own." An objection was made by the defendant to this statement, but it was overruled by the court. The prosecuting officer in this statement evidently referred to the goods missed by Ellis Gray from his house and which the defendant sold to a second-hand dealer a few days thereafter. The court had already advised the jury to acquit the defendant on this charge. The jury, however, were not bound by this advice. In view of the court's instruction, the better practice, we apprehend, would have been for counsel to have refrained from discussing any of the facts involved in this charge, but we are not advised of any authority that prohibits him from so doing.
The judgment and order denying motion for new trial are affirmed.
Conrey, P. J., and Houser, J., concurred.