People v. Clark

Motion to reinstate appeal heretofore dismissed by this court for the reason that appellant had escaped from jail subsequent to the taking of said appeal, and was a fugitive from justice at the time of the dismissal thereof. The appellant was convicted of murder in the first degree and sentenced to suffer the death penalty. He appealed to this court from the judgment of convic

[1] There is no statute governing the subject in this state. That the court, independent of statutory authority, has power to dismiss the appeal of an appellant who is a fugitive from justice has long been accepted as a proper exercise of the jurisdiction of the appellate courts of this state. (People v. Redinger, 55 Cal. 290 [ 36 Am. Rep. 32 ]; People v. Elkins, 122 Cal. 654 [ 55 Pac. 599 ]; People v. Sitz, 21 Cal. App. 54 [ 130 Pac. 858 ].) It is also the settled law in other jurisdictions. (17 C. J., 195, and cases cited.) In the state of Texas the right is given by statute. (Cobb v. State, 69 Tex. Cr. 619 [ 154 S. W. 1195 ] ; Tex. Code Crim. Proc., art. 880.) The dismissal of an appeal on account of the escape of a prisoner is not a denial of due process of law. (Allen v. Georgia, 166 U. S. 138 [ 41 L. Ed. 949 , 17 Sup. Ct. Rep. 525 , see, also, Rose’s U. S. Notes].) There is little to be found in the reports as to the power of a court, after the dismissal of an appeal upon this ground, to thereafter set aside the order of dismissal and reinstate the appeal, after the appellant has voluntarily surrendered himself, or has been returned to custody. The Texas statute

[2] We think it unnecessary, however, to decide the question whether this court has or has not the power to reinstate an appeal dismissed on account of the escape of the prisoner. Assuming, for the sake of argument, that the court has such power, it should only be exercised in those cases where it is plainly made to appear that a denial of its exercise would work a palpable injustice or wrong upon the appellant. We are satisfied in the present action that no advantage would accrue to the appellant by the reinstatement of his appeal. [3] We have already referred to the fact that the appeal in this action was perfected and the cause argued and submitted for decision while appellant was in legal custody. The record on the appeal is, therefore, before us. Both the opening and closing briefs of appellant and respondent’s brief are on file herein, and this court has had the benefit of argument of counsel on behalf of the respective parties. We think, therefore, that it is proper for us to look into the record of this appeal on file herein and, with the assistance of the argument of counsel already

An examination of the record shows that the contention of the prosecution was that the deceased, Silva, met his death as the result of a murderous assault made upon him by the appellant, in which appellant, with a knife, stabbed the deceased in the lower part of his abdomen, as a result of which Silva died a few hours thereafter. The main contention of appellant on this appeal is that the evidence is insufficient to justify the verdict of the jury finding the appellant guilty, and particularly that there is no evidence that in said assault the appellant used a knife upon the deceased, or that he had a knife in his hands during said assault. This contention can best be met by a brief review of the testimony of those present at the time of the encounter between appellant and the deceased.

The evidence shows that the deceased, Silva, and three companions, Kilbey, Utrecht, and Lane, were sailors on the vessel “City of Los Angeles,” which, on the evening of the 18th of April, 1925, was lying in the harbor of San Pedro. These four, on that evening, in company with two taxicab drivers, Densmore and Card, went to appellant’s place, located some four or five miles from San Pedro. This place was a dwelling-house which appellant had recently rented and moved into, and in which he was illegally selling intoxicating liquor. There was also residing in this house a young girl named Mamie Stephens, and the evidence tended to show that she was being kept at said place by appellant for immoral purposes. After arriving at the house, the six men were served with drinks by appellant. They had been in the house about a half hour when the altercation took place between the appellant and the deceased. It began in the room occupied by the girl, Mamie Stephens, but was soon transferred to the adjacent and main room, where the other men were. Whether it arose over the accusation by appellant that

The witness Kilbey testified: “I was sitting at the doorway there, the entrance to the bedroom in the sitting room, and all of a sudden there I heard the door open and here comes Silva backing out with his hands up like this . . . As soon as the door opened he simply backed out with his hand on the defendant, pretty close to him. Right directly I got up and I followed Lane out, Mr. Lane out of the house.” The witness Lane testified: “Of course, as quick as he opened the door I seen the condition of things, I started out. Q. What do you mean you saw the condition of things; what did you see? A. I saw Mr. Silva come out like this with his hands lifted. Q. Over his head? A. Over his head; so I seen there was trouble and I thought I would get out of it and walked out and Mr. Kilbey followed me. . . . Q. Where was Silva when you saw him there ? A. Standing in the middle of the door coming out of room 2. Q. Right in the threshold ? A. Yes, sir. Q. Did you see Clark at that time? A. Clark was right in front of him standing with his right hand behind him in that manner (indicating). Q. Did you see where his left hand was? A. It was at this side. Q. Is that all you saw at that time? A. That is all I saw; I was leaving the room.” Mamie Stephens’ testimony was as follows: “Silva started to walk out of the room and kind of walked backwards and Clark was shoving him, he wasn’t really shoving him but pushing him along, and Silva went out of the room and Í don’t know what he said, when he turned around to say something Clark had his hand on his shoulder and he had his hand behind him—Clark had his hand, his right hand behind him, and I thought I saw a knife in his hand so I— Mr. Groene: I object to what she thought, your Honor, as incompetent, irrelevant and immaterial. The Court: Yes, describe what you saw. Mr. Groene: I move that it be stricken from the record. A. (Continuing) Well,

This evidence was, without doubt, sufficient to justify the jury in believing that the wound inflicted upon the deceased had been made by a knife in the hands of the appellant. While only Densmore testified positively that he had seen the appellant stab the deceased with the knife, the others saw the encounter between the two men, and some of them testified to movements made by appellant with his hands, which strongly corroborated the testimony of Densmore that appellant used a knife upon the deceased. But, independent

Immediately after the trouble between the two men, Silva, with his three companions and Card, left in the latter’s taxicab, and were taken by Card to San Pedro, where they immediately boarded their ship. The only unusual circumstance regarding the evidence as a whole is that Silva gave no outward evidence that he had received a serious wound. While he did say, on his way ba,ck from the house of the defendant to his ship, that he had been stabbed, he did not act the part, nor did this remark seem to make any perceptible effect upon his companions. On arriving at the harbor he insisted on paying for the taxicab, and, with his companions, Kllbey, Utrecht, and Lane, went on board their vessel, each man going to his own room. But within a few minutes—one witness gives the time as about three minutes— he heard Silva holler, and, hastening to his room, the three men found Silva, partially undressed, lying in his bunk with a severe cut or wound on the left side of his abdomen, slightly below the navel. It had taken them only about thirty minutes to drive from appellant’s house to the place where their ship was docked. From the effect of this wound Silva died a few hours thereafter. There was no evidence tending in the slightest degree to show that Silva had or could have received the wound after he left appellant’s house. He was not out of the sight of his three companions from the time they left appellant’s house except for the short space of about three minutes after he left them to go to his room upon the ship. Their rooms were in close proximity to each other, and had any assault or encounter taken place between Silva and any other person they would have heard it. This circumstance, therefore, while unusual, would not be sufficient to overcome the effect of the other testimony in the case, pointing to the guilt of the appellant.

[4] Appellant claims that it was error for the court, over his objection, to admit in evidence the statement of

[5] A further assignment of error is made by appellant to the action of the court in overruling his objection to a question asked of the witness Mamie Stephens as to what appellant directed her to do in the house in which they were living. The question was answered before the objection was made, and appellant did not ask to have the answer stricken out. The only answer, however, given by the witness to this question was: “Several things.” It may be conceded that, as the objection was overruled, a motion to strike out the answer would have been denied. We fail to see, however, how the answer, “Several things,” given by the witness, could have been harmful to appellant. It was so general and indefinite that it meant nothing whatever, and could not have helped the case of the prosecution nor damaged that of appellant.

[6] The further contention is made that the court erred in permitting witnesses to testify as to what occurred just prior to the men going to appellant’s house, and as to events transpiring after leaving appellant’s place. As to the evidence regarding events that transpired just prior to the appearance of the men at appellant’s house, as far as we are able to gather from the record and from appellant’s briefs, the only testimony given by the witnesses was that they rode out in a car driven by Densmore, and that Card was sitting alongside of him on the front seat of the car. The court sustained all objections to any evidence of conversations had between the men during the ride and prior to the beginning thereof, and, on motion of appellant’s counsel, struck out all conversations which had been admitted without objection. We can see no ground upon which the appellant can base any claim of error in this regard. As to occurrences happening after the men left the appellant’s place, these simply covered the acts of the four men in returning to their ship, were of slight eonse

[9] The final complaint of the appellant is that the district attorney in his opening statement to the jury and in his final argument of the case was guilty of such misconduct as to prejudice the rights of the appellant to have a fair and impartial trial. We have read in full the remarks of the district attorney before the jury and we fail to find anything therein that could be reasonably construed as prejudicial to appellant’s legal rights. Appellant has made but few specifications of misconduct on the part of the prosecuting officer, none of which are well taken. We cannot feel that there is any merit in this contention.

Waste, C. J., Shenk, J., and Seawell, J., concurred.

Preston, J., dissented.