People v. Blanchard

Appeal by defendant Blanchard from conviction, on separate trial, under information brought jointly against him and two others, for violation of section 110 of the Penal Code, viz.: “Every person who carries or sends into a prison, jail, public training school or reformatory, anything useful to aid a prisoner or inmate in making his escape, with intent thereby to facilitate the escape of any prisoner or inmate confined therein, is punishable as provided in section one hundred and eight.” Section 108 provides punishment of imprisonment in the state prison not to exceed ten years, and fine not to exceed ten thousand dollars.

The information charged that appellant did willfully and wrongfully carry to and send into the San Mateo County jail two hack-saws useful to aid certain prisoners therein in making their escape from said jail.

The evidence shows that James Clinton, Maurice Allen, and George Dawson were legally imprisoned in the San Mateo County jail on charge of crime committed in that

The sheriff testified that on February 23, 1924, the appellant visited Dawson at the jail. Appellant also testified to this visit and that he was asked by Dawson at that time to bring saws to the jail, which request he refused. He admitted having known Humphrey, one of the defendants under the joint information herein, for a short time, and that he saw the latter between six and ten times prior to and immediately following the 23d, at his own room, at one of which times, and at that place, there were a can of milk and two hack-saw blades. A discussion was had as to the possibility of putting the blades into the can of milk, or other means of getting the blades into the jail. He stated: “There was a discussion as to—if those blades could be put into a milk can, and no one had any suggestions to make as to how it could be done. It seemed implausible, and my advice was that the thing be forgotten and that everything be thrown away, and the discussion dropped on that subject.” Later he stated he had reason to believe the blades were thrown away, because he saw Humphrey throw something away. On further question he testified he had reason to believe “now” that it was the can of milk.

Appellant admitted that following his arrest he had denied acquaintance with Humphrey, and also denied any conversation between himself and Dawson regarding saws. He admitted that he had previously been convicted of a felony. He stated that his visit to the jail on the 23d was with relation to some pawn tickets which the San Francisco police had sent him, and that his first visit from Humphrey, whom he had not theretofore known, was occasioned by Dawson, one of the prisoners, sending Humphrey to him, to arrange about attorneys. He stated that he and Humphrey were out one evening “looking for three people.” He did not name the people. His employer for four years testified as to his honesty, as did a woman in whose home she testified he had lived for three years. They stated they knew nothing of his former conviction, nor of any charges on which he was presently wanted in San Francisco.

[1] To this point, and standing alone, has been stated the evidence on which reliance must be placed as corrobo

Part of the same evidence given here as corroboration of the main charge, was also corroborative of the testimony of one or more of the conspirators, to establish the conspiracy said to be necessary as foundation for proof of the main charge. As the main charge, so the conspiracy was testified to by a co-conspirator or accomplice, and the corroboration served to establish it. [2] The proper order of proof to have the conspiracy first established before evidence of

Appellant’s main argument is grounded on the foregoing propositions.

He further complains of error in refusal to give instructions, and in prejudice resulting from instructions given. [3] The first of the requested instructions was as to the weight to be given the testimony of appellant. The point was covered by other instruction given by the court, and the request was not improperly refused for that reason alone. [4] The seventh requested instruction that “the testimony of an accomplice ought to be viewed with distrust” has been held to be a charge as to matters of fact and unconstitutional. (Hirsh feld v. Dana, 193 Cal. 142 [ 223 Pac. 451 ].) [5] The jury were properly instructed on the prohibition against conviction on the testimony of an accomplice, as to who are principals, and the code definition of accomplices. [6] Though it might' have been proper for the court to charge specifically that Humphrey was an accomplice, the cases have not held that it is mandatory to do so, the general rule being that it is for the jury to determine where the facts are in any dispute. (People v. Coffey, 161 Cal. 433 , 436 [ 39 L. R A. (N. S.) 704 , 119 Pac. 901 ]; People v. Truax, 30 Cal. App. 471 [ 158 Pac. 510 ].) It has been held not to be reversible error to so charge. (Vails v. State, 59 Tex. Cr. 340 [ 128 S. W. 1117 ].)

[7] A remark of the court to the effect that the jury, thanks to the gentlemen conducting the ease, would be able to get home early because the facts were few and they would be able to decide quickly the guilt or innocence of defendant, does not bear appellant’s construction of it as a mandate to hurry, and prejudicial to due consideration. The instructions are to be taken as a whole, and the concluding instruction admonished the jury in terms to

Alleged error as to the admission of evidence has been covered in discussion of the evidence of conspiracy testified to by co-conspirators.

Attack is made on the refusal of the trial court to allow the introduction of a diary kept by appellant, in appellant’s behalf, and the “indirection” by which the district attorney used the same matter to prove appellant’s acquaintance with Humphrey. [10] It is well settled that oral or written declarations of a defendant, not falling under specific exceptions to the rule, are not admissible in his favor, as self-serving. The diary constituted such declarations. [11] The district attorney did not introduce the diary in evidence; it is true that he asked a question of defendant, reading a statement from a page of the diary, but it was asked on one point to impeach the appellant’s testimony on that one point, and in the form, “did you on the 15th day of February, 1924, write the following language, in your own wording: ‘nothing unusual today. Humphrey came up in eve. Sat around and played records’?” The appellant answered “yes.”

The jury found the defendant guilty, and motion for probation was denied.

Tallen as a whole, and with the mandate of section 4% of article VI of the constitution before us, we are of the opinion that the judgment of conviction should be affirmed.

It is so ordered.

Tyler, P. J., and Knight, J., concurred.