People v. Shayer

The jury found appellant guilty of second degree robbery; also that a prior conviction of robbery with which he was charged was true. He was sentenced to imprisonment in the penitentiary, and this appeal was taken from the judgment of conviction and the order denying a motion for a new trial.

As to the degree of crime involved the jury was instructed that if appellant were found guilty “the only verdict would he a verdict of second degree, because no deadly weapons were used’’. Appellant contends that the offense established by the evidence, if any there was, was grand theft and not robbery; that therefore the above instruction was erroneous and the verdict rendered in conformity therewith is contrary to the evidence. The question of variance was not raised at the trial, nor were any instructions proposed by appellant relating to the crime of grand theft. Assuming, however, that the point may be raised for the first time on appeal, it finds no support in the evidence.

'The specific point made by appellant is that accepting Rudden’s testimony as true it shows that the money was obtained by trick and device, which constitutes theft, and not by means of force or fear, which is essential to robbery. As will be noted, however, it appears from the evidence that although appellant and his companion compelled Rudden to enter their automobile by the use of the false pretense that they were officers, it was established beyond question that after he so entered, the money was taken from him by means of force and fear. Therefore the crime committed was robbery and not grand theft, and since no deadly, weapon was used in its commission, it amounted only to robbery in the second degree. It follows, therefore, that the instruction complained of was proper and that the verdict conforms to the evidence.

At the conclusion of the evidence counsel then representing appellant asked for a continuance so that he might try to locate and have subpoenaed a man named Carmody. In support of the request counsel testified that he had been informed that Rudden told Carmody that appellant took from him only $76 of the money and returned the balance. It also appears from counsel’s testimony, however, that he knew for some time about said witness but made no effort to locate him or to have him subpoenaed until the trial was nearly finished; furthermore it appears from counsel’s testimony that even though a continuance were granted there was no probability of ever locating the witness, or if so that he could be found within a reasonable time. Therefore, the refusal of the court to grant a continuance under such circumstances, at the close of the evidence, cannot be said to have amounted to an abuse of discretion.

Complaint is made also of the action of the trial court in limiting the arguments to the jury to twenty minutes on each side. It does not appear, however, that such limitation deprived appellant of any substantial right. The evidence was brief, the taking of the testimony having consumed less than five hours. Counsel for appellant made no protest as to the time allotted when the order was made, and by thus limiting the arguments to forty minutes the

After the district attorney finished his closing argument counsel for appellant asked: “Will your Honor give this instruction; and that is, that if the money was his [appellant’s] he had a right to take iti” The court was justified in refusing so to do, first, because obviously an instruction in the words suggested by counsel would not have been a correct statement of law; and secondly, if counsel desired to have a complete and correct instruction upon the subject given he should have submitted the same in writing. (Pen. Code, sec. 1127.)

Appellant further contends that the evidence is legally insufficient to sustain the finding of the jury that the charge of a previous conviction of robbery was true, and that therefore the district attorney was guilty of misconduct in assuming in his argument to the jury that appellant had been so previously convicted. Among the new sections added to the Penal Code in 1931 was section 969b, which provides that the records or copies of records of the penitentiary, when officially certified, are prima facie evidence of previous conviction and imprisonment. But in the present case, for some reason not shown by the record, the district attorney did not invoke the provisions of said section. Instead he introduced in evidence the judgment-roll of the superior court in the criminal action in which it was claimed the previous conviction was obtained, saying: “I offer in evidence the judgment roll in the case of People of the State of California against Edward Shayer, number 18153, showdng that on the 4th day of September, 1928, Edward Shayer was convicted of the crime of felony, to wit: Robbery, and was thereupon sentenced to San Quentin in the Superior Court of the State of California, in and for the City and County of San Francisco, Department Number 6 thereof.” And in this connection appellant argues that

As pointed out in State v. West, 175 Minn. 516 [ 221 N. W. 903 ], and Jacobs v. United States, 24 Fed. (2d) 890 [ 58 App. D. C. 62 ], it is held in a number of jurisdictions that for the purpose of establishing prior convictions the introduction in evidence of a certified copy of the judgment of conviction, showing identity of names, will in itself be accepted as prima facie proof of identity of persons. But regardless of the rule followed in other jurisdictions, the record here shows that no objection was made to the introduction in evidence of the judgment-roll upon the ground that appellant was not the person named therein, nor upon any other ground; nor was any motion made at any time to strike it out. Furthermore, neither a copy of the judgment-roll itself nor the substance thereof is set forth in the record on appeal; consequently, aside from the legal requirements of the statute (Pen. Code, sec. 1207) enumerating the records that shall constitute a judgment-roll, we are not informed as to what particular facts were disclosed by the one here introduced. Admittedly the issue as to whether a defendant has been previously convicted of felony, as charged in the information, is one of fact to be determined by the jury the same as the issue of guilt, and in the-present case, although appellant testified fully as a witness in his own behalf, he did not intimate then nor does he now that he is not the Edward Shayer named in said judgment-roll. In the foregoing state of the record we are not prepared to hold that the finding of the jury on this issue is lacking in evidentiary support.

The remaining assignment of error, relating to the impanelment of the jury, is expressly abandoned in appellant’s closing brief. Therefore, since no ground for reversal has been found as to the other points urged, the judgment and order appealed from are affirmed.

Tyler, P. J., and Cashin, J., concurred.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 12, 1934. .