People v. Disperati

In a brief of exceptional merit it is earnestly contended by appellant that he has not had a fair trial. “Prejudiced,” declare his counsel, “by the misinstructions of the court and by the court’s refusal to give proper instructions and by the outrageous and villainous misconduct of a juror, the defendant was deprived of a just consideration of his case. The verdict is contrary to the evidence because there is no evidence that defendant abetted or advised anyone to steal. The verdict is contrary to the facts, because receiving or disposing of stolen property is not larceny. The verdict is contrary to law because the defendant has been once in jeopardy.”

These various propositions are methodically presented with citation of numerous authorities. The consideration of some of the points discussed is deemed unnecessary, but the following we regard as of vital importance:

1. On December 18, 1907, Miller & Lux caused a complaint to be filed in the justice court against defendant, charging him with the larceny of four mules branded HH. On January 23, 1908, defendant was held to answer, and on the 30th following an information was filed in the superior court to, which a plea of not guilty was entered. On April 6, 1908, the

On June 5, 1908, the district attorney made an application for a dismissal of the information “in furtherance of justice as provided in section 1385 of the Penal Code." He submitted certain reasons for said application to the effect that sufficient time had not elapsed to secure the attendance of the-necessary witnesses for the plaintiff, that disclosures had been coming to light indicating that defendant had an accomplice or accomplices in the crime, and that it was important that the investigations concerning the same be completed before the trial of the defendant, and that it was impossible to complete them before the expiration of sixty days from the former mistrial, that it would be opposed to the interests of justice-to disclose at that time the matters being investigated tending-to connect the defendant or his accomplices with other offenses, and that “the trial of this action will be very expensive and might burden the county general fund, that money due for other county expenses and contracts might thus be-consumed, thereby causing bona'fide claimants to lose their legal rights to be paid out of the revenues of the current, fiscal year.” The court thereupon made the following order:. “It is therefore ordered that the motion of the district attorney be and the same is hereby granted and order made as requested. It is further ordered that the information be and the same is hereby dismissed, the defendant discharged and bond exonerated."

On the same day another complaint was filed in the justice court charging the defendant with the same larceny. He-was held to answer and another information was filed to which a plea of “once in jeopardy” and of not guilty were entered. The trial resulted in a verdict of guilty and for the people,, under the direction of the court, on the plea of “once in jeopardy."

In support of his contention that he is entitled to the protection of article I, section 13, of the constitution, providing that “no person shall be twice put in jeopardy for the same-

Appellant, however, admits that the jury may be discharged because of their inability to agree upon a verdict and jeopardy will not attach, but it is insisted that this rule can have no application here, for the reason that “The court did not hear any legal evidence or try the issue or make any finding on the question whether or not the jury could agree, but dismissed the jury summarily, on the same day of the submission of the cause, without the consent of the defendant.” But it does appear that the jurors stated to the court that it was impossible for them to agree, and we cannot say that their statements were unworthy of belief. We must assume that the court was entirely satisfied that any further effort to secure a verdict would be futile. The statute does not provide just what proceeding shall be taken to determine the probability of an agreement, but no better method occurs to us than to obtain from the jurors an expression of their judgment, and the court, in the exercise of the discretion committed to it, may give such weight to this opinion as the surrounding circumstances seem to demand.

Again, although the jury should not be discharged until the court is satisfied that an agreement is not probable, still the law does not require an express finding by the court that the jury could not agree, and for that reason were discharged. Section 1140 of the Penal Code, the authority for the court's action, provides that “The jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and rendered it in open court ... or unless at the expiration of such time as the court may deem proper,

It may be remarked that the minutes introduced in evidence in the case at bar do sufficiently show that the jurors could not agree, although in view of the presumption as to the regularity of the proceedings of a court of record and of the rule imposing upon the appellant the burden of showing error affirmatively, since nothing appears to the contrary, it would be presumed, if necessary to support the judgment, that the defendant consented to the discharge of the jury.

A more serious question arises from the fact that the information was dismissed and the second trial was had upon another information based upon a new complaint in the justice court charging the same offense. The proceeding is quite unusual, and no doubt should be adopted only when substantial and exigent reasons seem to demand it. The attorney general seeks justification for the course pursued in section 1385 of the Penal Code, which provides that “The court may either of its own motion or upon the application of the district attorney and in furtherance of justice order an action or indictment to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes.” Section 1387 is: “An order for the dismissal of the action as provided in this chapter is a bar to any other prosecution for the same offense, if it is a misdemeanor; but it is not a bar if the offense is a felony.”

In the case of People v. Schmidt, 64 Cal. 263 , [ 30 Pac. 816 ], it is said: “Upon due notice given the district attorney moved the court to dismiss the action and retain the defendant in custody for a re-examination upon a new charge for the same homicide. The defendant and his counsel were present at the hearing of the motion and made no objection; and the court ordered the dismissal upon the ground stated in section 1385, supra. After the entry of the order a new charge of murder was made against the defendant upon which he was regularly examined .before a magistrate and committed to

In that ease, however, it is said: “But it was also proved that the information upon which he was convicted contained no allegation that the homicide had been committed with ‘malice aforethought,’ nor were any words of equivalent import used in it to describe the crime; the information was therefore fatally defective.”

In People v. Campbell, 59 Cal. 243 , [ 43 Am. Rep. 257 ], and People v. Breen, 130 Cal. 72 , [ 62 Pac. 408 ], the doctrine is reiterated that “an order setting aside an indictment or information is no bar to a future prosecution for the same offense,” but it does not appear upon what specific ground the orders were made in those cases. In People v. Mooney, 132 Cal. 14 , [ 63 Pac, 1070 ], there had been a trial, conviction and a reversal of the judgment by the supreme court on the ground that the information was fatally defective. “Upon a return of the remittitur to the trial court, the district attorney made a motion in furtherance of justice that the court dismiss the information.” Thereupon the information was dismissed and the defendant discharged. Proceedings were again taken in the justice court and a new information filed upon which defendant was convicted, and the supreme court held that he had not been in jeopardy.

In People v. Smith, 143 Cal. 597 , [ 77 Pac. 449 ], it was held that “The dismissal of a charge of petit larceny in a justice’s court on motion of the district attorney, for the purpose of charging a felony for the same offense against the same defendant, based upon a prior conviction of burglary, does not operate as a former acquittal.”

The foregoing cases are certainly authority for holding— if authority other than the provision of the statute is needed —that the dismissal of an information in the interests of justice is not a bar to another prosecution for the same offense. Nor does it signify that “the defendant,” as stated by appellant, “was not the actor in any matter that laid the foundation for the plea, but, on the contrary, all the proceedings taken that created and compelled the jeopardy were done against his wishes and without his act or consent.” If there had been a conviction of the defendant upon the first information it would indeed have been a bar to another prosecution

As far as the depleted condition of the treasury is concerned, we cannot give our adherence to the view that this is a sufficient ground for the course pursued. The right of an individual charged with a crime to a speedy trial without unnecessary delay and embarrassment is surely as urgent and important as that of a creditor of the county to have his just demands promptly liquidated. The other reasons urged by the district attorney are more meritorious, but it would have been much better if they had been embodied in an affidavit and made the basis for an application to have the cause continued a reasonable period for trial. Thereby the investigations could have been completed, the additional witnesses probably secured and the necessity avoided of adjudicating the vexatious question now presented.

But passing this, the statute provides that the order “as provided in this chapter” is not a bar, and the mandate in reference to said order is that it must contain the “reasons of the dismissal.”

We have no authority to disregard this requirement or to hold that it is merely directory. The proceeding is somewhat harsh, and imposes an additional burden upon the defendant, and no substantial departure from the plain provision of the statute should be tolerated.

In the case of People v. Jordan, 63 Cal. 219 , it appears that “Pending a demurrer to an information a new information was filed, and afterward the demurrer to the former information was sustained, but no order was made or requested permitting a new information to be filed, nor was any opinion expressed that the objection raised could be avoided by a new information,” and it was held that the judgment on demurrer to the first information was a bar to another prosecution. Ex parte Williams, 116 Cal. 512 , [ 48

Here there is no pretense that the order of the court recites the reasons upon which it was based. It is true the record shows the grounds upon which the motion was made by the district attorney, but nothing in the order shows that these grounds were, or any of them was, the basis for the action of the court.

There is an objection by the attorney general that “once in jeopardy” was not sufficiently pleaded. Section 1017, subdivision 4, of the Penal Code provides a simple form for such a plea. The defendant followed substantially the language of the code, but instead of specifying simply the “time, place and court,” he set forth all the facts, including the specific times, places and courts in any way relating to the plea, so that even laymen could understand the import of the plea. The only valid objection that could be urged against it is that it contains more than the law demands, but this does not deprive the defendant of the right to have it considered.

It is to be observed that this is no “technical” objection to the proceedings as the term “technical” is commonly understood, but it relates to an important rule of procedure which the legislature has provided for the guidance of the courts, and the omission to observe it cannot be held to be innocuous without an invasion of the authority of a co-ordinate branch of the government. If the practice of which complaint is made is to be continued, it is manifest that great abuse is likely to follow, more dangerous to society than even the acquittal of the guilty.

2. Complaint is made of various rulings of the court in admitting evidence over the objection of appellant. Conceding some of the rulings to be erroneous, the error seems to have been without prejudice. We, therefore, forego any specific consideration of them and devote our attention to the following instructions given by the court: (A) “The court instructs you that in determining whether the defendant is guilty of the larceny of said animals, as charged, I instruct you that it is not necessary for the people to prove

In the case at bar, however, there was no evidence of the actual participation of the defendant in the original taking from the possession of Miller & Lux, and it was conceded by the people that the mules were brought by a Mexican to defendant’s place and left there to be pastured. Some days after that they were taken to what was known as the Service pasture, and about six weeks thereafter they were taken to the Gordon corral mentioned in instruction B.

The jury must have understood from instruction A that though defendant had no connection whatever with the original caption and no knowledge of it at the time, yet if he afterward received into his possession the property with knowledge then that it had been stolen and subsequently participated in the disposition of it, he is guilty of larceny. But the instruction is erroneous because it presupposes that the larceny had been completed before defendant had any guilty knowledge of it. In fact, it assumes that the mules “had been feloniously stolen and driven: away” before they were received into defendant’s pasture, and, the asportation having been terminated, that the defendant aided the thief in getting rid of the property. No man can be guilty, as principal, of a crime who has no knowledge of it until the crime is fully consummated. The facts set forth in the instruction-constitute the crime of receiving stolen property and nothing more.

In Tucker v. State, 21 Tex. App. 699 , [ 2 S. W. 893 ], defendant was convicted of theft, his defense being that he bought the animal in question from two strangers. Defendant asked the court to instruct the jury as follows: “If you

In Boyd v. State, 24 Tex. App. 570 , [ 5 Am. St. Rep. 908 , 6 S. W. 853 ], it is said: “The prosecution, however, being for theft, and it being absolutely essential in support of that charge to connect the defendant with the original taking to warrant his conviction, without such proof of connection any subsequent guilty connection with the stolen animal, such as a receiver of the same, or as to the party who had illegally altered the mark or brand, would not be sufficient to warrant the conviction for theft. To inculpate a defendant as a principal offender in the crime of theft, the state must show that he had some connection with or complicity in the taking of the property. It does not suffice to prove that subsequent to the taking, and without complicity therein, but with knowledge that the property had been stolen, he aided the taker to dispose of it.”

In People v. Maxwell, 24 Cal. 14 , a larceny case, the following instruction was condemned: “Should you believe from the evidence that the witness Morgan stole the property described in the indictment, and that the same was found in the possession of this defendant, and that this defendant and Morgan were associated together and that the defendant knew that the property was stolen, then and in that case he is equally guilty in the eye of the law, and your verdict should be guilty.”

In People v. Stakem, 40 Cal. 599 , it is held that if the cattle were stolen by another than the defendant, and the defendant afterward had guilty knowledge that they were stolen and aided and assisted the other in selling and disposing of said cattle, and was to participate in the profits thereof, he was guilty of the specific offense under the statute of receiving stolen property.

In People v. Horton, 7 Cal. App. 34 , [ 93 Pac. 382 ], the following instruction was upheld: “Before you can convict the defendant of larceny you must believe beyond a reasonable doubt that he is guilty of, or in complicity with, the original fraudulent taking, and any subsequent connection after the taking would not be larceny.”

The instruction marked B is equally objectionable as the one we have been considering. It assumes that the third asportation with a felonious intent would constitute larceny. The second paragraph of the instruction, abstractly considered, may be a correct exposition of the law, but it was liable to be misapplied by the jury in view of the evidence. It is true that after the original taking was completed the defendant might have stolen the property. If, for instance, he had feloniously taken it from the possession of the Mexican, it would be larceny and the ownership could have been laid in the latter or in the real owners, Miller & Lux. But a defendant cannot “feloniously steal and take property”— necessary to constitute larceny—which is already in his possession. Applying it, however, to the facts, the jury were likely to conclude from this portion of the instruction that a felonious disposition of the property after it had been stolen by another was larceny. Respondent cites the case of the People v. Del Cerro, 9 Cal. App. 764 , [ 100 Pac. 887 ], as authority in support of these instructions. But in the Del Cerro case it was expressly held that the instruction should not be construed as a direction to the jury that “if the defendant

In State v. Grant, 76 Mo. 236 , it was held that “a larceny may be regarded as still in process of accomplishment so long as the original caption is still unbroken and the original asportation is still in progress”; and in State v. Trexler, 4 N. C. 188 , [ 6 Am. Dec. 558 ], that “where there is one continuing transaction, though there may be several distinct asportations, the party may be indicted for the final carrying away,” but the several asportations were continuous and by the same party, while here, as we have seen, the instructions are based upon the hypothesis that the offense of larceny had been completed Before any culpable participation on the part of the defendant.

Among other instructions the defendant requested that the court give the following, which was refused: “The jury is instructed that if you believe that the only part that the defendant took in the alleged larceny was that he, after the said mules were stolen, aided or assisted the person who stole them in selling or disposing of them, or participated in the profits thereof, then he cannot be convicted of grand larceny, and in such case you will acquit the defendant.” As this states a correct principle of law, and as there was evidence to which it would apply, we think it should have been given.

In conclusion, we deem it proper to state that the evidence of larceny by defendant is slight; there is at least more evi

The judgment and order are reversed.

Hart, J., and Chipman, P. J., concurred.