47 Cal. 113 | Cal. | 1873
Lead Opinion
The defendant was indicted, jointly with three other persons, for the crime of robbery, and was tried separately. In the indictment it was alleged that he had previously been convicted of petit larceny. At the trial he was convicted of assault with intent to commit robbery, and the jury also found that he had been previously convicted of petit larceny as charged in the indictment. The Court thereupon sentenced him to confinement in the State Prison for fourteen years, which is the greatest punishment prescribed by the statute for an assault with an intent to commit robbery. When the prosecution offered in evidence the record of his prior conviction for petit larceny, it was objected to on the ground that Section 667 of the Penal Code, which inflicts the highest punishment prescribed by the statute, if the accused had before been convicted of petit larceny, is unconstitutional and void. The Court, however, admitted the evidence, and this ruling is assigned as error.
The clauses of the Constitution which are claimed to have been violated are those which provide, 1st, that “no per
In Virginia, they have a similar statute, and in Rand v. Commonwealth (9 Grattan, 743), Mr. Justice Daniel, in delivering the opinion of the Court, says: “No constitutional or other obstacle, however, seems to stand in the way of the Legislature’s passing an Act declaring that persons thereafter convicted of certain offenses committed after the passage of the Act may, if shown to have committed like offenses before, be subjected to greater punishment than that prescribed for those whose previous course in life does not indicate so great a degree of moral depravity. One convicted under such a statute cannot justly complain that his former transgressions have been brought up in judgment against him. He knew, or is presumed to have known, before the commission of the second offense, all the penalties denounced against it; and if in some sense the additional punishment may be said to be a consequence of the first offense (inasmuch as there could be no sentence for such punishment in the absence of proof of the first conviction) still it is not a necessary consequence, but one ■which could only arise on the conviction for the second offense, and one, therefore, which being fully apprised of in advance, the offender was left free to brave or avoid.”
In Massachusetts a similar statute exists, and in Ross Case (2 Pick, 170) Chief Justice Parker, in delivering the opinion of the Court, said: “The statute provides, that if any person having been before convicted of larceny, shall afterward commit another larceny, he shall be punished
It appeared in evidence at the trial that the defendant, and the three persons jointly indicted with him, were discovered by a policeman in the act of attempting to perpetrate the robbery; and that immediately after the attempt they proceeded to a saloon, where they were all soon after-wards arrested by the same and another policeman; that after leaving the saloon, and whilst being conducted to the jail, one of them (other than the defendant) broke away from the officer having him in charge, and attempted to es
In the State v. Rand, 33 N. H. 216, the defendant was tried as an accessary, before the conviction of the principal, on the charge that the principal had broken into and robbed a bank, and the defendant was an accessary. The Court very properly held that for the purpose of proving the guilt of the principal, evidence of his concealment and flight, immediately after the perpetration of the crime, was admissible. But it was received solely to establish the guilt of the principal, and not of the accessary.
The rule is well settled that the acts of an accomplice are not evidence against the accused, unless they constitute a part of the res gestee, and occur during the pendency of the criminal enterprise, and are in furtherance of its objects. (People v. Moore, 45 Cal. 19; 1 Greenl. Ev. §111; 3 Phil. Ev. 396, note 234.)
The flight of the accomplice in this case occurred after the criminal enterprise had ended, and was not in furtherance of its object, nor a part of the res gestœ.
The evidence was therefore inadmissible. If all evidence
Judgment reversed, and cause remanded for a new trial.
Mr. Justice Niles did not express an opinion.
Dissenting Opinion
1. I concur in the opinion of Mr. Justice Crockett upon the points of constitutional law discussed by him. I lately expressed the same views in Ex parte Gutierrez, 45 Cal. 429.
2. But, in my opinion, the judgment of conviction ought ' not to be disturbed, merely because the evidence of the attempted escape of the prisoner’s associates in crime was admitted. It is conceded that if the attempt to escape could be considered to be part of the res gestee—if the criminal enterprise, in which the prisoner had been jointly concerned with others, had not fully ended—then the evidence was correctly admitted. The felonious assault with intent to commit the robbery, the arrest of the guilty parties, and the attempted flight of McGovern all occurred in such rapid succession in point of time, that it might be difficult to designate clearly the precise punctum temporis at which the criminal enterprise could be said to have come to an end. But whatever conclusion is to be reached upon this point, I am of opinion that the evidence objected to and admitted did not affect the substantial rights of Stanley in a legal point of view. The evidence of his guilt was without pretense of contradiction, and was overwhelming in its character. I am satisfied, that without reference to the evidence objected to, the verdict must have been that rendered by the jury. They must, as I conceive, have believed Wallace, the policeman, else they could not have convicted the prisoner at all. Wallace swore that he was an eye-witness of the felonious assault made by the prisoner and his confederates, for which the indictment pro
It is conceded by my associates that if all the evidence given at the trial were to be found in the record, it might indeed have appeared that the alleged error in this respect was immaterial; but it is said that in the absence of the entire evidence no presumption that the error was harmless to the prisoner can be indulged. And why, it may be asked, is not all the evidence brought here ? The fault in thalj respect, if it be one, is that of the prisoner. It is he who presents the record, and who assumes the burden of making manifest an error affecting his substantial rights below. All the intendments here, consistent with the records as presented, go to support, not to overthrow, the judgment rendered in the Court below. This rule is familiar in all proceedings in error, be they civil or criminal in their character. We are not to reverse a judgment becaqge possibly, or even probably, error may have occurred below. Nothing is better settled than that a bill of exceptions, whether in a civil or criminal case, is a pleading of the party who relies upon it. It must make a case in his favor affirmatively. If open to the charge of ambiguity, uncertainty, or omission, it must, like any other pleading, be construed most strongly against the party who relies upon it. (People v. Williams, 45 Cal. 25.) If,, indeed, at the trial of the prisoner, the evidence given upon the issue was of such a character as to lend apparent weight and importance to the circumstance of McGovern’s attempted escape from the custody of the officer, the prisoner could and ought to have made it so appear by embodying the whole of the evidence in the record.
I am, therefore, of opinion that the judgment should be affirmed.