People v. O'Shaughnessy

The defendant, having been convicted of the crime of receiving stolen property,' has appealed from the judgment and from an order denying a new trial.

It appears from the evidence that a store in San Diego was broken into on the night of May 29, 1933, or the early morning of May 30, and that a number of radios were stolen therefrom. On June 1, 1933, police officers found two of these radios in a house occupied by a Miss Johnson and a Miss Van Norton. On June 2d, the appellant was arrested and at police headquarters was asked “what explanation he had to make regarding the two radios which he sold at Pearl Van Norton’s home”. The appellant replied that on Tuesday night (which was the night after the radios were stolen) a man asked him to sell the radios; that he did not know the man’s name but he wore a gray suit and was of-about his own age and size; that he told this man he thought he could sell the radios, whereupon the man brought the two radios to his room; that he immediately took them to Miss Van Norton’s house and sold them for a total of $18; and that he returned to his room and paid the man in the gray suit $15, retaining $3 for himself. The appellant further stated that he had not participated in burglarizing the store referred to but that when the man brought the two radios to his room he was quite satisfied that they came from this particular store, as he had been through the

It is first urged that the court erred in granting a continuance of one week after the trial of the action had been begun. The trial was commenced on July 24, 1933, and two or three witnesses had been examined when the district attorney stated that a subpoena had been issued for Miss Johnson but that she was not present. An adjournment was taken until 2 o’clock that afternoon, at which time it developed that the sheriff’s office had been unable to find Miss Johnson in order to serve the subpoena. The district attorney asked for a continuance, stating that he was willing to take the case up at the earliest possible date although he knew' that the court had other criminal cases set for the rest of that week. The court stated that a continuance would be granted for a sufficient time to enable them to see if they could obtain the witness or make a proper showing of diligence, and the trial was continued for one week. The appellant relies especially upon the case

The action of the court in receiving into evidence the record of the testimony given by Miss Johnson at the preliminary hearing is assigned as error. It is first urged that this evidence was inadmissible because Miss Johnson was not asked and did not state what was her business or profession. (Pen. Code, sec. 869.) It appears that this witness was a female person, that she was living in the home of another woman, and the record does not show her age. If it may not be presumed that she had no business (see People v. Grundell, 75 Cal. 301 [ 17 Pac. 214 ]) at least it must be held that this provision is directory merely and not mandatory. (People v. Grundell, supra; People v. Buckley, 143 Cal. 375 [ 77 Pac. 169 ].) The appellant argues that had this witness stated her business it would appear that she was a woman of the streets and that for this reason the jury would not have believed her testimony. Not only does this go to the weight of the evidence and not to its admissibility, but the record contains no evidence of the fact claimed, and it may not be assumed that the jury would have disbelieved, her testimony when it coincided in every detail with statements made by the appellant.

Another reason advanced for the inadmissibility of this evidence is that no sufficient showing of diligence appears. The only argument made as to lack of diligence is that the prosecution should have seen to it that this witness was arrested and kept in jail until wanted. The record contains no evidence, and none was offered, of any facts that would have justified such an arrest and detention. It

“The ‘due diligence’ required by section 686 of the Penal Code, does not mean or require that the entire state shall be searched for an absent witness or a subpoena sent to every county in the state with instructions to the officers thereof to make a search for the witness, and, therefore, no such showing is required to be made as a prerequisite to or foundation for the allowance of the deposition of the absent witness taken at the preliminary examination at the trial. The rule is well stated in Heintz v. Cooper, 104 Cal. 668 , 670 [ 38 Pac. 511 , 512], as follows:

“ ‘Diligence is a relative term incapable of exact definition. What would amount to due diligence under one state of facts would fall absolutely short of it under another and

different state of facts. It depends, therefore, so essentially upon the particular circumstances of each case, with all their distinct and varying phases and bearings, as they have appeared to the lower court at the trial and throughout the conduct of the cause, in determining whether diligence has been used in any particular instance, that this court should hesitate to disturb a ruling upon this ground where it has any substance whatever upon which to rest. The presumption is that the discretion has been properly exercised, and that presumption must be overcome by a clear want of facts before the order will be disturbed. ’ ”

We are unable to hold that there is here no evidence of a substantial character to support the trial court’s conclusion. Even the appellant sees no lack of diligence except a failure to arrest and detain the witness. Assuming that some circumstances might call for such drastic action it can hardly be held to have been absolutely essential here. All that the due diligence referred to in the statute means is that a reasonable effort to locate the witness shall be made. What constitutes a reasonable effort naturally varies with the facts of each case. Where a witness has a home and a fixed address, which has apparently not been given up or changed and where he is traveling or away for an indefinite time, no good could be accomplished by requiring that an officer make a pretense of looking for the witness in a number of places where he could not reasonably be expected to be found or by requiring that an extensive or expensive search be made in every county of the state. There is nothing to indicate that any greater degree of diligence in this case would have secured the presence of this witness or that the diligence used was not reasonable under the circumstances. There is a presumption that the discretion of the court in this matter has been properly exercised and we think this presumption has not been overcome by a clear showing.

The next contention made is that the statements and admissions made by the appellant to the officers were not admissible since the corpus delicti had not been proven. Aside from these admissions there was evidence that these two radios had been stolen from this store on the night of May 29th; that they were found in the home of Miss Johnson and Miss Van Norton on June 1st; that at some time

The appellant complains of the refusal of the trial court to give a requested instruction on the presumption of innocence. With respect to this, the court read to the jury an instruction containing the exact language of section 1096 of the Penal Code, which sufficiently covered the subject. (Pen. Code, sec. 1096a.) Another instruction given is attacked as containing an improper inference and as, to some extent, weighing the evidence. The appellant reads into the instruction something not contained therein and the objection is without merit.

The only other points raised are that the court erred in failing to advise the jury to return a verdict of acquittal and that the evidence is not sufficient to justify the verdict. These points are covered by what has already been said. The statements made by the appellant after his arrest were practically a confession and, with the other evidence, furnish a sufficient answer to these contentions.

The judgment and order appealed from are affirmed.

Marks, J., and Jennings, J., concurred.