People v. Carter

In the information the defendants were charged jointly with the commission of the crime of attempting to commit grand larceny, witlp a prior conviction of a felony.

Defendant Carter appeals from a judgment of conviction and from an order of the court denying his motion for a new trial.

Appellant contends that the judgment is contrary to law, and that the verdict of the jury is not supported by the evidence.

From the record on appeal it appears that the jury was justified in believing the following facts to be true: A man named Shrader, who was the owner of an automobile, parked it near the curb on the street directly opposite a building in which his office was located, and from which place he saw defendant Carter seated in Shrader’s automobile, manipulating the levers thereof. At the same time Shrader could hear the “starter gears working in the car.” After watching Carter for several minutes, Shrader and a man named James started across the street in the direction of the automobile, and when they arrived near the center of the

It also may be said that defendant Carter and his witnesses gave a plausible explanation of his conduct, which was consistent with his innocence, on the occasion to which reference has been had.

Carter testified in effect that he had no intention of stealing. Shrader’s automobile, and his counsel here contend that the facts are insufficient to authorize a jury to find against his positive statement in that regard. [1] But the question of intent is one that must be solved by the jury. [2] The facts (as shown by the evidence), that defendant was seated in the automobile, manipulating the leVers thereof; that the starting motor was running; that he got out of the automobile and walked away when Shrader and James approached him; that when “motioned” to and called upon to “wait a moment,” as Shrader wished to speak to him, after he and James were joined by a uniformed policeman, he did not stop; that he so persistently ran away, even when called upon to stop or that the man who was following him would shoot; that he failed to stop even after a shot was fired; that he ran, not in a direct line, but in a devious course, along and upon different alleys, streets and through storerooms, in at manner evidently well calculated to elude and evade his pursuers; that as he ran he shouted “Stop thief”; that in his efforts to avoid arrest he struck at least one man in the face with sufficient force and violence to break the cartilage of his nose; that thereafter he continued to try to make his escape until intercepted and arrested by a police officer; and that he made inconsistent and contradictory statements regarding his connection with the affair—argue, if not conclusively, at least presumably, that he was guilty of the offense of attempting to commit grand larceny, as charged in the information.

Appellant urges the point that “if an attempt to commit a crime be voluntarily abandoned before the act is put in process of final execution, there being no outside cause

The assumption that there was a “voluntary abandonment” and that there was “no outside cause prompting such abandonment” was apparently not shown by the evidence to the satisfaction of the jury. The jury may have concluded that the “outside cause prompting the abandonment” was that defendant saw Shrader and James approaching the automobile which defendant was endeavoring to start and surmised that one of them was the owner of the automobile; or, the jury may have been convinced from the evidence that Carter had attempted to steal the automobile, but had failed to do so because he was unable to start it.

[3] There can be no doubt that mere intent by a single individual to commit a crime is not sufficient to amount to a criminal act. However, it is also unquestionable that after the intent has been formed and such intent has been coupled with an overt act toward the commission of the contemplated offense, the abandonment of the criminal purpose will not constitute a defense to a charge of attempting to commit a crime.

In the case of People v. Oates, 142 Cal. 12 [ 75 Pac. 337 ], it is ruled that in a proper case the giving by the trial court of an instruction that “a person who attempts to commit a crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable for said attempt,” was not error, as the instruction was substantially in the language of section 664 of the Penal Code.

As is said in the ease of People v. Stewart, 97 Cal. 238 [ 32 Pac. 8 ] : “The fact that he (defendant) abandoned his wicked purpose upon the approach of other parties has not the slightest tendency to purge him of the legal consequences of his criminal conduct. If an assault with the intent here alleged is made, it is no less a crime, though the aggressor should abandon his intentions before the consummation of the act, by reason of the pains of a stricken conscience alone.” To the same effect see: People v. Johnson, 131 Cal. 511 [ 63 Pac. 842 ] ; People v. Dong Pok Yip, 164 Cal. 143 [ 127 Pac. 1031 ]; People v. Bowman, 6 Cal. App. 749 [ 93 Pac. 198 ].

[4] it is also contended by appellant that no overt act was shown on the part of defendant. The authorities appear

[5] In the instant case the jury was justified in believing from the evidence either that an attempt on the part of defendant to steal the automobile had failed because of his inability to start it, or that he had taken fright and abandoned his criminal purpose for the reason that he feared detection and arrest by Shrader and James whom he saw approaching the automobile as he was manipulating its levers. If in the night-time a man had attempted to pry open a window in a house not belonging to him and while so engaged had seen two citizens and a policeman approaching him and thereupon had left the house, and on being called upon to “wait a moment,” instead of complying with such request had run away and thereafter conducted himself as did the defendant on the occasion here in question, no one

[6] The decision of the question of the criminal intent necessary to be attributed to defendant in order that he should be lawfully declared guilty of an attempt to commit grand larceny rested wholly with the jury. It was one of the component parts necessary to the commission of the offense with which defendant was charged. What defendant’s intention was could not be mathematically demonstrated. It was a question of fact to be proven just like, any other fact in the case—by the acts and the admissions of the defendant and by other circumstances. If from such evidence the jury was satisfied beyond a reasonable doubt that defendant intended to steal the automobile, so far as the conclusion reached by the jury in that regard is concerned, it is final and conclusive (People v. Barker, 137 Cal. 557 [ 70 Pac. 617 ]; People v. Johnson, 131 Cal. 511 [ 63 Pac. 842 ]); and in the case at bar such decision was not only warranted and justified by the testimony of the witnesses and the physical facts presented, but, manifestly, it is the only logical conclusion that could have been deduced from the evidence.

[7] Defendant was a witness in his own behalf. On cross-examination he was asked how long a time he had known his - codefendant Booth. He replied in substance that he was unacquainted with him and knew him only by sight. In rebuttal thereof, over defendant’s objection, the prosecution showed that after defendant Carter was arrested certain letters and papers purporting to be the property of Booth, together with three photographs of Booth, were found in Carter’s room. Appellant contends that the action of the court in overruling defendant’s objection and in admitting such evidence was prejudicial error. It is suggested that whether or not defendant was acquainted with Booth was ■collateral to the issue; and the principle that there can be no impeachment on such matters is invoked. It should be remembered, however, that by the information defendant Carter was charged jointly with defendant Booth. The prosecution claimed that a conspiracy to commit grand larceny- existed between the two defendants.

In the ease of People v. Childs, 127 Cal. 363 [ 59 Pac. 768 ], where the defendant Childs was charged jointly with

“The court did not err in permitting the prosecution to show that Childs and Piggott had been frequently seen together on occasions other than the one at which the larceny is alleged to have been committed. The evidence tended to show that Childs committed the larceny by aiding and abetting Piggott in taking the stolen property from the person of the complaining witness. It was necessary, therefore, for the prosecution to show that the defendants were co-conspirators in the commission of the crime; and it cannot be said that the fact of their being seen frequently together was entirely irrelevant, and did not tend in any degree whatever to establish the conspiracy.” And so it may be said in this case that the fact that defendant Carter was not only acquainted with defendant Booth, but that they were on terms of intimate friendship, was a relevant circumstance in the case tending to prove that a conspiracy existed between them for the purpose of stealing the automobile referred to in the evidence.

The case of People v. Tiley, 84 Cal. 651 [ 24 Pac. 290 ], which, as to the point raised by appellant, is to the effect that “a party cannot cross-examine his adversary’s witness upon irrelevant or collateral matters for the purpose of eliciting something to contradict or impeach him”—is clearly distinguishable in its facts from those presented in the case at bar, in that in the Tiley case the person regarding whom the defendant was asked as to his acquaintance was a wholly disinterested person and apparently connected with the action only as a witness; while in the instant inquiry, as heretofore mentioned, the individual as to whom the attention of defendant was directed by the question was a co-defendant with the defendant on trial and the question was asked for the purpose of tending to establish that a conspiracy existed between the two defendants.

We perceive no error in the record. The judgment and the order denying the motion for new trial are affirmed.

Conrey, P. J., and Curtis, J., concurred.