132 P. 784 | Cal. Ct. App. | 1913
Defendant was convicted of the crime of grand larceny. He moved for a new trial, which motion being denied, he was sentenced to imprisonment for the term of five years. He appeals from the judgment. *702
It is claimed that "the whole case against the appellant rests upon the credibility of the complaining witness, C. G. Engblom," who, it is further claimed, "was insane and not mentally responsible" and that "the jury should have been permitted to hear the evidence relating to his mental condition, as bearing on his credibility."
It is also contended that the superior court of Mendocino County did not have jurisdiction to try the case.
1. The information charged that the defendant, "on or about the 16th day of June, 1912, at the said Mendocino County, state of California, . . . did then and there feloniously steal, take and drive away" certain cattle, the property, etc. There was evidence that the cattle were owned and were running in Trinity County when taken and were driven to Mendocino County and there sold. There is no averment in the information that the cattle were stolen in or taken from Trinity County and driven into Mendocino County.
In People v. Mellon,
In People v. Prather,
People v. Jochinsky,
In the present case it is contended by defendant that "if any crime was committed, it was entirely begun and completed in Trinity County . . . long before the cattle ever saw Mendocino County"; it is hence claimed that "there is a fatal variance between the charge and the proof." The evidence tended to show that the intent to steal the cattle was as manifest *704 when the defendant brought them a short time after they were stolen, into Mendocino County and there sold them, as when he first stole them in Trinity County. No objection was made to the information by demurrer or otherwise and no objection was made to the testimony on the ground of variance. We think the information was sufficient to give the jurisdiction to the superior court of Mendocino County and the evidence was sufficient to support the charge as laid.
2. Only one other point is raised by the brief of defendant. When the complaining witness, C. G. Engblom, was called, and before he was sworn, defendant objected to his competency on the ground that he was "insane and not mentally responsible and that the jury should have been permitted to hear the evidence relating to his mental condition, as bearing on his credibility." Over defendant's objection the jury was excused and, in their absence, witness Charlton was called by defendant and testified that Engblom came to his place of business that morning and the witness undertook to testify to what Engblom said, in his presence and the presence of the witness's father. It was a statement about a horse, a cart, a creek, a set of harness and a line and in the course of which the witness testified that he said: " 'My head was hurting me, I had pains in the back of my head this morning, I was almost crazy,' " or " 'I was crazy,' or something similar to that; I says that's all right, you go get the line, so he went up the creek; he had it up the creek, and brought it back. Then we come on down to the shop and he wanted me to be sure, and thought it was father's place, and wanted me to be sure and make it all right; he didn't want to make any trouble, and I told him it was all right, it seemed to be with all of us. That's about all I know."
Cross-examination by Mr. Duncan, district attorney: Q. This man is a foreigner, you discovered that? A. Well, I thought so. Q. He talks a very broken. English, it's very difficult to understand him, isn't it? A. Yes, sir. Q. So you inferred simply from his conversation about his wanting a horse, of course you might be mistaken about that. A. Yes, sir. Q. And when you got up to the barn you found he said something about a set of harness, and finally got the word line, and 'creek' and so on, you understood from it that he had taken a line. A. I understood him to say the harness *705 was up the creek this morning, and I says 'here it is' then he pointed to the bridle bit, and there was one line gone. Q. Well, he brought the line back to you, did he? A. Yes, sir; then he wanted to be sure there was no trouble; that it wouldn't make any trouble or anything, and wanted me to make it all right. (That's all.) Redirect examination by Mr. Mannon. Q. Did he tell you what he took the line away for, or whether he had taken it away? A. Yes, I understood him to say he had very bad pains in his head and that he had gone crazy or was almost crazy or something, and took it up there I understood him, I couldn't say for sure, that he was going to hang himself, then he said that he had got some medicine later on and that he was all right now; that he was out of medicine for a day or two. (That's all, your honor.) Court: That's all you know about it, is it? A. Yes, sir. Mr. Mannon: Nothing further, if your honor please. Court: Well, the court don't think he is crazy now anyway; might have been something the matter with him, might have lacked some medicine that he had been taking."
This was on Saturday, November 9, 1912. On the following Monday the case was called and Engblom was, without further objection, sworn and testified. He was examined at some length, in the course of which he gave what appears to be a clear, intelligent and coherent account of his ownership of the cattle, where they were running in Trinity County, when he first missed them, his search for them, his learning where they were in Mendocino County and their final recovery. His cross-examination presents no apparent failure to understand questions put to him or to respond intelligently and to the point. He testified that his memory was poor and that he "had a good many pains in his head sometimes." He also testified that he had been "pretty sick" since he came to the trial. "Q. You take a pair of lines last Saturday out of a man's barn out here?" Objection made by the district attorney and sustained. "Q. You use any kind of medicine all the time, Mr. Engblom? A. Yes. Q. What kind of medicine is it?" Objected to and sustained. Counsel pursued the matter no further. These questions were probably asked with the view of opening up the previous inquiry, made by the court, into the incompetency of the witness by reason of his mental condition. *706
It is conceded and is undoubtedly true that the question of a witness's competency is for the court to determine. (People v. Stouter,
Mr. Justice Field, in the Arms case, said: "The general rule, therefore, is, that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue; and whether he have the understanding is a question to be determined by the court, upon examination of the party himself and any competent witness who can speak to the nature and extent of his insanity." The inquiry as to the competency of an insane witness called to testify in a case should be determined by the court by a preliminary examination before the witness is sworn. (11 Am. Eng. Ency. of Law, p. 145.) It has been held that whether a witness, save when he testifies, was insane at the time of the transaction with regard to which he testifies, goes to the credibility of his testimony, and not to his competency, and it is therefore a subject for evidence to the jury, to be adduced by the opposing party with his other evidence. (Holcomb v. Holcomb,
Recurring to the examination by the court, it will be observed that defendant confined his inquiry to a single circumstance involving the conduct of the witness. No expert testimony was offered and Engblom himself was not examined to test his mental condition or to ascertain whether he could intelligently narrate the facts in the case, as was done inLopez v. State,
*707 17 S.W. 1058], and, besides, the witness who was called testified that Engblom declared "that he was all right now."
Our code provision is that "persons cannot be witnesses":
"1. Those who are of unsound mind at the time of their production for examination." (Code Civ. Proc., sec. 1880.) Hence the rule stated by Mr. Wharton that "Evidence of mental disturbance at the time of the event narrated can be received to affect credibility" (Wharton on Criminal Evidence, 8th ed., secs. 370-373), and, as is provided for in the Texas statute (Lopez v. State,
In State v. Simes,
The trial courts usually, if not uniformly, conduct the examination in the presence of the jury. The question arises in the course of the trial and is part of it. The decision of the question is with the court, it is true, but it is still with the jury to say whether the witness is to be believed, and there is some force in the contention that the jury would have a right to consider to some extent the testimony given as to the witness's competency in determining his credibility. However, we do not think it necessary to decide the point at this time and hence refrain from doing so.
So far as the facts were developed, had they been testified to in the presence of the jury, they would not have given rise to any reasonable inference affecting the credibility of the witness and hence defendant was not prejudiced.
No question is raised in the brief of the defendant as to the sufficiency of the evidence to justify the verdict.
The judgment and order are affirmed.
*709Hart, J., and Burnett, J., concurred.