People v. Hewitt

The accused was convicted in the superior court in and for the county of Sacramento of the crime of robbery. He appeals from the judgment of conviction and an order denying his motion for a new trial.

The point first urged for a reversal is that the information upon which the defendant was tried and convicted is “fatally defective” in that it does not describe with sufficient particularity or definiteness the character of the property alleged to have been taken by the defendant or state its value. The information is as follows:

“The said J. Hewitt on or about the 2nd day of May A. D. 1925, in the said County of Sacramento, in the said State of California, and before the filing of this information, did then and there wilfully, unlawfully, feloniously and forcibly take from the person, possession and immediate presence of one V. Fink, a certain sum of money, the amount of which is to the District Attorney unknown, and of the personal property of said V. Fink, which said taking was then and there without the consent and against the will of the said V. Fink and was then and there accomplished as aforesaid by means of force used upon and against the said V. Fink by the said defendant, and by then and there putting the said V. Fink in fear, contrary to the form, force and effect of the Statute in such case made and provided, and against the peace and dignity of the People of the State of California.”

The specific objection to said pleading is that it does not describe the particular kind and denomination of the money and the amount thereof taken from Fink, the complainant, and it is hence argued that under the information the defendant might be put upon trial for a different offense from that with which it was the intention to charge him; that the offense is not so described as to protect the defendant, in case of his conviction or acquittal under the information, against a second or subsequent prosecution for and conviction of the same offense; that the information is so vague and uncertain in the particular mentioned that it fails sufficiently to inform the defendant of the particular

[1] The crime of robbery, like that of grand larceny, when the property has been taken from the person of another, does not depend upon the value of the property taken. (Pen. Code, see. 487.) It would seem, therefore, that, in charging robbery, or grand larceny, when the property is stolen from the person of another, it is not necessary to allege the value of the property taken. [2] Still we will not say that where robbery is charged that a sufficient description of the property taken should not be given in the information or indictment, where such description can be given, to apprise the accused of the particular property he is charged with having taken, and thus enable him the better to defend against the charge. No demurrer, however, was interposed to the information, and, as it clearly states the crime of robbery, it must be assumed that any special objection which might have been raised to the pleading was waived by the failure to demur. A like objection under a similar situation arose in the case of People v. Cheuey Ying Git, 100 Cal. 437 [ 34 Pac. 1080 ], The charge there, as here, was robbery, but the several varieties of property alleged to have been taken were not specifically described in the information but were therein referred to by their common or generic names, to wit: “money, jewelry and hair ornaments.” The supreme court, in denying the validity of the objection thus urged, said:

“The authorities hold almost universally that the description of the property taken in robbery is required to be equally specific with that required in larceny. Prior to the amendment of 1880 to our Penal Code a much greater degree of particularity was required in this respect than at present. By section 967 it is now provided that in an indictment or information for the larceny or embezzlement of money, bank notes, etc., it is sufficient ‘to allege the larceny or embezzlement ... to be of money, bank notes,

“This statute does not in terms apply to cases of robbery, but as the latter crime is but larceny from the person accomplished by force or fear, and as the same reasons exist for the modification of the rule in such cases, it may well be held that a rule which often required impossibilities in description, the existence of which courts often regretted as tending to thwart rather than promote justice, should be modified. Be this, however, as it may, after judgment in an action without objection, whether in a civil or criminal case, a pleading which states a cause of action or offense, but states it defectively, cannot be successfully attacked. It is not in such cases a defective allegation but a total lack of allegation which renders the judgment void, and hence open to attack.

“There is here an attempt to describe the personal property taken, a lame one it must be confessed, but, imperfect though it be, it is nevertheless such an one as will support a judgment.

“Wharton on Criminal Pleading and Practice, quoting Blackburn, J., says, ‘that where an averment which is necessary to support a particular part of the pleadings has been imperfectly stated, and a verdict on an issue involving that averment is found, and it appears to the court after verdict, that unless this averment were true the verdict could not be sustained, in such case the verdict cures the defective averment, which might have been bad on demurrer, ’ and, in this respect, there is no distinction between the pleadings in civil and criminal proceedings. (Sec. 760; People v. Swenson, 49 Cal. 388 .) ”

In the case of People v. Cox, 40 Cal. 275 , cited by defendant, in w'hieh the charge against the accused, a clerk, was embezzlement of the sum of eight hundred dollars received in the course of his employment as such clerk, it was held that the indictment did not properly state the offense, for the reason that the money alleged to have been embezzled was not described with the particularity with which that species of property is capable of being described— that is, that it was not described as “lawful money of the United States,” or as gold or silver or specifying the denomination thereof. In deciding the case, the supreme court, by Wallace, J., made the following significant suggestions:

„ “For obvious reasons it may be difficult to give such a description of property embezzled, particularly where the offense is committed by a person in • the course of a continuous employment, as a clerk, cashier, or the like; but I find nothing in the law authorizing us to make any distinction upon this point between offenses of larceny and embezzlement. It would promote the ends of justice, perhaps, if a statute should be passed to correct the law in this particular, as has been done in England, where it is enacted by Stats. 7 and 8, Geo. IV., Ch. 29, Sec. 48, that ‘it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security,’ etc.”

As is to be observed from the above-quoted extract from People v. Chuey Ying Git, the legislature did change the law “in this particular,” and, therefore, the Cox case is not applicable to this or other like cases in which the indictment has been filed since the amendment of section 967 of the Penal Code, as above shown.

In the case of People v. Ammerman, 118 Cal. 23 [ 50 Pac. 15 ], also cited by defendant, the objection to the information was that it did not state the crime of robbery because it contained no allegation as to the ownership of the money which it was alleged was taken by the accused from the person of the complaining witness by force. That, however, is not this ease. The information here, it will be seen, states that the money alleged to have been taken was the property of the party from whom it is alleged to have been taken.

The case of People v. Hunt, 251 Ill. 446 [ 36 L. R. A. (N. S.) 933 , 96 N. E. 220 ], is squarely in line with the position of defendant here. But it does not appear from the opinion in that case whether the state of Illinois has, or, at the time of the rendition of the judgment in the case, had a statute (sec. 987, Pen. Code) similar to ours as it was amended by the legislature of 1880 and as it was construed, as so amended, in People v. Chuey Ying Git, supra. We may assume that the common-law rule requiring a definite description of the property alleged to have been taken in an indictment or information charging robbery or larceny prevailed in said state at the time the case of People v. Sunt arose. Even, however, if it be true that the rule in Illinois was then and is now the same as it is now declared in sec

[3] The point next submitted for a reversal is founded upon the ruling of the trial court admitting in evidence the transcript of the testimony given by the complainant, Fink, before the magistrate at the preliminary hearing of the charge, it having been made to appear at the trial that said Fink was not present when the case was called for trial nor during the trial. The objection to the transcript was based on the ground that the requisite diligence was not exercised by the officers to subpoena and so secure the presence of Fink at the trial. (Pen. Code, sec. 686.) The record shows that on the twenty-ninth day of May, 1925, the case was set down for trial on June 19, 1925, at 10 o’clock A. M.; that on the nineteenth day of June, 1925, by agreement of counsel on both sides, the court ordered a postponement of the time of trial to the thirteenth day of August, 1925, and the trial of the cause was then set for that day; that on the eighth day of June, 1925, one Ed Nicholas, then county detective in and for the county of Sacramento, and, as such officer, attached to and connected with the office of district attorney of said county, caused a subpoena to be issued out of the superior court of said county for said Fink. The record further shows that said Fink was an itinerant, that his usual occupation was that of a sheepherder, and that he had been in California but a few days prior to the time at which he is alleged to have been assaulted and robbed of his money by the defendant; that, consequently, he had no permanent residence anywhere. So far as was known, he had no relatives or acquaintances in Sacramento County or in this state, except such acquaintances as he might have made within the brief period of time during which he was in Sacramento or elsewhere in the state prior to the date of the trial. Nicholas stated, however, that he located Fink “at a ranch out by Eio Linda. I went out there,” testified Nicholas, “and he had left there, and I went to, I guess, two dozen lodging houses in the lower end of town (meaning Sacramento), and to the address given at the preliminary examination. I have also visited most of the employment offices in the lower end of town (referring to Sacramento), particularly the Enter

“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.” (See Jones v. Singleton, 45 Cal. 92 ; Baker v. Joseph, 16 Cal. 180 ; Kenezleber v. Wahl, 92 Cal. 202 [ 28 Pac. 225 ] ; People v. Johnson, 13 Cal. App. 779 [ 110 Pac. 965 ]; People v. Boyd, 16 Cal. App. 130 [ 116 Pac. 323 ].)

[5] The ruling admitting the deposition of Pink in evidence is further declared to involve error for the reason, as is the claim, that it was not “properly authenticated.” No specific objection to the introduction of the deposition was made by defendant at the trial on that ground, although, in addition to the objection that the “due diligence” required by the statute had not been shown, the objection that the transcript of the testimony offered was “not the best evidence” was also made. We think the objection was not sufficiently specific to raise the issue upon that proposition or to render a review thereof by this court of any avail to the defendant. A specific objection—that is, an objection directly specifying that the deposition was not “authenticated” as required by law—should have been made so that the court could have directly and specifically ruled thereon, and, furthermore, so that the district attorney could, if able to do so, have obviated the objection by showing that, as a matter of fact, the deposition was duly authenticated.

[6] The contention that the verdict does not derive sufficient support from the evidence is wholly untenable.

I Fink, whose home was in the state of Idaho, and who, as above stated, was, at the time of the alleged robbery, a recent arrival in California, went to the city of Sacramento on the first day of May, 1925. On the succeeding day (May 2d) he met the defendant for the first time. Just at what hour of that day they first met is not shown; but it appears that they became apparently quite companionable, and, paradoxical as the statement may seem in these days of strenuous prohibition (?), they had a few drinks together of intoxicating liquor, not a sufficient number, however, so Fink testified, to produce intoxication. The early evening of that day found them together in a pool-hall near Third and L Streets and engaged together in playing a game of pool. After a few games were played defendant, so Fink testified, accused the latter of owing him (defendant) a dollar. Fink denied the indebtedness and left the poolroom and stepped out upon the sidewalk. He was immediately followed by defendant, who was still insisting that Fink owed him a dollar. Fink then said to him: “I would rather give you a dollar than to have trouble,” whereupon defendant struck Fink a blow of sufficient force to knock

BIton J. Plato, city purchasing agent of the city of Sacramento, testified that in the early part of the evening of May 2d, he and his family were taking an automobile ride; that he drove down Second Street from Second and K Streets to L, and thence to Third and L. Just as he was approaching the latter corner, and when only a few feet therefrom, he saw defendant strike Fink and “knock him down”; that he thereupon “slowed down,” and saw defendant lean over Pink, and that he then brought his car to a full stop and observed defendant “feeling about the man”; that “defendant started to get away pretty fast . . . and I chased the defendant and overtook him on K Street, between Third and Fourth.” Several other parties also followed the defendant to the point mentioned on K Street. These parties held him until a policeman, in response to a telephone call, arrived on the scene and took defendant in charge. Plato testified that, before the officers arrived and while he “was struggling to get away,” the defendant, addressing his captors, said: “Let me go; I’ll give you the dough.” Plato went to the police station and was present when defendant’s person was searched by the officers; saw the officers take from the accused a twenty-dollar bill and, the witness thought, “some silver.”

A. H. Selander was present at Third and L at the time defendant struck and knocked Fink to the sidewalk. He testified that he saw defendant stoop and put his hand in the watch pocket of Fink’s trousers; that he also followed defendant when he retreated from the scene of the trouble toward K Street and was present when the witness Turner got hold of defendant; that he heard defendant say to Turner that he would “split with Turner if he (Turner) would let him (defendant) go”; that he also heard defendant say at that time, addressing Turner: “I will pay you back, if you let me go.”

Policeman Warren testified that, on searching defendant at the police station, he found one twenty-dollar bill only, a few pieces of silver and some small “trinkets.”

Thus, it would seem, the People made a very strong case against the accused. The fact, however, that but one twenty-dollar bill was found in the possession of the defendant when he was searched by the officer after his arrest, and the fur

[7] Lastly, it. is contended that the court erred, to the prejudice of the rights of the accused, by refusing to allow, upon his request, the following instructions:

“The jury is instructed that with respect to all verbal admissions it may be observed that they ought to be received with great caution. Such evidence, consisting as it does in the mere repetition of oral statements, is subject to much imperfection and mistake, as the party himself being either misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It also frequently happens that the witness by unintentionally altering a few of the expressions really, used, gives an effect to

“The Court instructs the jury that the crime of robbery includes the crime of larceny, and that under an information for the first offense of robbery the jury may find the defendant guilty of larceny if they entertain a reasonable doubt as to which of the two offenses he was guilty.”

The first of the above instructions is based on subdivision 4 of section 2061 of the Code of Civil Procedure, which provides that upon the proposition contained in said subdivision, as well as upon the several propositions set forth in six other subdivisions of said section, the jury “is to be instructed by the court on all proper occasions.” Said section 2061, in so far as it purports to authorize judges to give to juries an instruction based on subdivision 4 thereof, has been held to be in direct contravention of section 19 of article VI of the constitution to the effect that juries shall not be charged or instructed with respect to matters of fact. (Kauffman v. Maier, 94 Cal. 269 , 273 [ 18 L. R. A. 124 , 29 Pac. 481 ]; People v. O’Brien, 96 Cal. 180 [ 31 Pac. 45 ]; People v. Wardrip, 141 Cal. 225 , 231 et seq. [ 74 Pac. 744 ]; People v. Moran, 144 Cal. 48 , 64 [ 77 Pac. 777 ].) In these and subsequent eases, however, it was held that either the act of giving or the act of refusing to give the instruction would not be held to be sufficient to justify the reversal of a judgment, since the proposition contained in subdivision 4 of said section is a “mere commonplace,” or, as is said in Kauffman v. Maier, supra, the fact that the statements of a witness as to what some other person has orally said to him are liable to be erroneous and should, therefore, be received with caution, involves a matter of common knowledge, and the assumption must always be that a jury, in considering the testimony of a witness purporting to involve a repetition of any oral statement which the defendant in a criminal or any party to a civil action or a witness in either has made to another with respect to the case or any issue directly involved or incidentally arising therein, would know as well as the judge or any other person that it would be their duty to view it with that degree of caution which the circumstances of the particular case or those under which the oral statement was made justly exacted or required. (See, in addition to the eases above named, People v. Baler,

The instruction last hereinabove quoted contains a correct abstract statement of the law with respect to the elements of the crime of robbery. [8] Larceny is essentially one of the ingredients of the crime charged in the information, and yet where, as here, the evidence, without conflict, shows that the larceny or felonious asportation of the property from the person of the complaining witness was accomplished by means of force, then the distinctive crime of grand larceny is swallowed up by the more aggravated crime of robbery, and in such case an instruction that, the crime of grand larceny being, abstractly, within the crime of robbery, it was within the legal discretion of. the jury to find the accused guilty of grand larceny, would not be pertinent to the case as made by the proofs. The defendant himself did not testify in this case and no other witness was produced on his behalf to say that the substantially uniform story of all the eye-witnesses to the commission of the crime and who testified for the prosecution as to the circumstances under which and the violent means by which the defendant despoiled Fink of his money was not true.

No other assignments of error are presented. The judgment and the order appealed from, for the reasons herein-above given, are affirmed.

Plummer, J., and Finch, P. 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 August 16, 1926.