148 P. 928 | Cal. | 1915
Appellant Glenn Witt and one Oxnam were jointly informed against for the crime of murder, alleged to have been committed December 22, 1914. They were tried separately, and appellant having been convicted of murder in the first degree, was, on January 21, 1915, adjudged to suffer death. This is an appeal from such judgment and from an order denying his motion for a new trial.
It is not claimed that appellant is not guilty of the offense of which he has been convicted. In view of the record, such a claim would be without warrant. According to his own admissions made shortly after his arrest, and his own testimony given on the trial, appellant and Oxnam burglariously entered the house of deceased, William M. Alexander, in Los Angeles, at about 2 o'clock on the morning of December 22, 1914, for the purpose of committing larceny therein. They obtained access to the house through a window on the ground floor, and having gone upstairs, went into the room occupied by deceased and his wife. The attention of Mrs. Alexander was attracted by some noise made by them and she awakened her husband. Upon the flashing on of the electric light by the latter, appellant and Oxnam were discovered. Even then the two men persisted in their efforts to take and carry away the valuables of deceased, Oxnam attempting to hold Alexander at bay with a revolver which he had brought with him, while appellant was searching for articles of value. In the struggle which ensued between Alexander and members of his family on the one hand, and appellant and Oxnam on the other, Oxnam shot and killed the deceased. The appellant himself did not have a pistol. Both men escaped from the house, but were shortly after apprehended in a room where they had taken refuge. They were identified beyond question as the two burglars, and the case is one where guilt is shown beyond question of a doubt, even without the admissions and testimony of appellant. But, as we have said, the testimony of appellant himself convicts him of murder in the first degree. Although he did not himself fire the fatal shot, he was at the time engaged with Oxnam in the perpetration or attempt to perpetrate the burglary; was a principal therein, and was equally guilty with Oxnam in the eyes of the law of any act committed by the latter in and about the prosecution of the burglarious scheme of himself and Oxnam. Our statute expressly providing *107
that any murder "which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree," (Pen. Code, sec.
A review of the record shows that there was in the proceedings no error affecting any substantial right of the appellant. In the light of the admitted facts, the various points made by counsel for appellant appear trivial and inconsequential.
The information charged the defendants with the crime of murder, committed as follows: "That the said Glenn Witt and Charles E.T. Oxnam, on the 22nd day of December, 1914, at and in the county of Los Angeles, state of California, did willfully, unlawfully, feloniously and with malice aforethought, kill and murder one William M. Alexander, a human being," contrary to the form, force and effect of the statute, etc. Concededly, this describes the offense of murder in the language of our statute, and is in accord with a form approved over and over again by this court. It is claimed, however, that it does not sufficiently allege the kind of murder proved in this case, viz: one committed in the perpetration or attempt to perpetrate one of the felonies specified in section
In view of what has already been said, it is clear that the trial court did not err in instructing the jury substantially that where the killing is done in the perpetration or attempt to perpetrate one of the felonies specified in section
The record shows that during the examination of one of the witnesses a juror asked to be excused for a minute, and the court answered "Yes," whereupon the juror went "into the ante-room and returned in two or three minutes," whereupon the court directed the trial to proceed. Apparently, while no adjournment was taken, no proceedings were had during *109
the absence of the juror. It is admitted that when the juror was thus allowed to absent himself, no admonition was given to him or to the other jurors, and that no officer accompanied said juror. There is no pretense that any objection was made by defendant at the time. It is urged on these facts that the jury was allowed to separate during the trial of the case, and that such separation must be held to have been prejudicial to appellant. It is not claimed that the trial court had placed the jury in charge of an officer, and under our statute (Pen. Code, sec. 1121) the jury are permitted to separate at adjournments and recesses until the case is submitted to them for decision, unless the court, in its discretion, orders them kept together in charge of an officer during the progress of the trial. Of course a separation would be improper after the jury had been placed in charge of an officer or after submission of the cause to the jury, or at any time while evidence was actually being received, and the cases cited by appellant from this state are all cases of this character. There was no forbidden separation here. (See People v. Coyne,
Appellant was personally present when judgment of death was pronounced on January 21, 1915, the judgment decreeing substantially that he suffer the penalty of death, that he be delivered into the custody of the warden of the state prison at Folsom, and that the sentence be executed by said warden on a date to be thereafter fixed by the court. Subsequently, *110
the judge, as required by section
Finally it is urged that the trial court erred in refusing to permit testimony to be given by appellant and his mother with reference to his character and previous habits. It is not claimed that the offered testimony was relevant or material on the issue of either guilt or degree of crime, but simply that inasmuch as the jury had the right to assess the punishment in the event of conviction at either death or life imprisonment, appellant was entitled to have admitted for their consideration evidence as to matters not otherwise relevant or material. We are of the opinion that our law does not contemplate any such independent inquiry on a trial for murder, and that the determination of the jury, under the provisions of section
The judgment and order denying a new trial are affirmed.
Sloss, J., Melvin, J., Shaw, J., Lorigan, J., Henshaw, J., and Lawlor, J., concurred. *112