People v. Haack

Under an indictment found and returned to the superior court of Butte County by the grand jury thereof and filed in said court on the seventh day of May, 1927, the defendant was convicted of the crime of grand larceny, in that he, on or about the first day of April of said year, did unlawfully and feloniously steal and take away two calves, the personal property of one Nettie Frishholz. ;

The indictment as found was in four counts, viz.: Count 1, charging the offense of which the defendant now stands convicted and with which this appeal is alone concerned; count 2, charging him with the stealing, on or about the seventh day of April, 1927, of two calves, the property of one William Cardoza; count 3, charging him with the stealing, on or about the third day of March, 1927, of one calf, the property of one John Bettencourt; count 4, charging him with the stealing, on or about the second day of April, 1927, of one calf, the property of one William N. Lewis.

¡ The trial of which the present appeals are the outgrowth is the second prosecuted against the defendant under the indictment. The result below of the first trial was the conviction of the accused under counts 1, 2, and 3 and his acquittal under count 4. He took an appeal to this court from the judgment and the order disallowing his motion for a new trial on his conviction at the first trial, and in an opinion by Mr. Justice Plummer of this court the judgment and the order were reversed and the cause remanded for a new trial. (People v. Haack, 86 Cal. App. 390 [ 260 Pac. 913 ].) It is, among other things, said in the opinion:

“This appeal presents for our consideration two major reasons why the judgment of the trial court should be reversed, to wit: First, that conviction was had upon the uncorroborated testimony of an accomplice; and, second, alleged • error on the part of the trial court in instructing the jury on matters of law.

“A careful reading of the testimony set out in the transcript discloses that there is absolutely no corroborating testimony, as required by section 1111 of the Penal Code, in so far as counts 2 and 3 of the indictment are concerned, and no further comment need be made thereon.”

In the opinion it is further held that the record disclosed sufficient corroboration of the testimony of the accomplice to justify the submission of the case to the jury on the question of the defendant’s guilt or innocence of the crime stated in the first count of the indictment, but properly held that a reversal was required because of erroneous in

At the last trial, or the one from which the present appeals have arisen, the court directed the jury to return verdicts of acquittal as to counts two and three, and the jury acted accordingly. As above stated, we are concerned here only with count one, which, as also stated above, charges, in appropriate legal form, the defendant with the stealing, on April 1, 1927, of two calves belonging to Mrs. Frishholz.

The witness upon whose testimony the People principally relied at both trials for a conviction of the accused was a Mrs. Florence King, who testified at both trials that she participated with the defendant in the commission of the larceny charged in count one, and who, therefore, was confessedly an accomplice of the accused. (Pen. Code, sec. 1111.) As on the former appeal so on this, the point first urged is that the verdict fails of sufficient support for the asserted reason that the testimony of Mrs. King, the accomplice, was not corroborated by other testimony, as required by the section of the Penal Code just cited. Other assignments of error involved the action of the trial court in giving and disallowing certain instructions.

The testimony presented by the People at the second trial in support of the charge set forth in count one of the indictment is substantially the same as that likewise presented at the first trial. The opinion of Mr. Justice Plummer (cited above) contains a full and- accurate statement of the facts brought out by the testimony so presented. It is not necessary, therefore, that we should repeat herein, in elaborate or extended detail, the evidence adduced at the trial responsible for the present appeals. There should be made herein, however, some reference to the facts as they were brought before the jury at the last or second trial, in order that a general outline of the ease, as it was made by the evidence, may be with us as we consider the several legal points which defendant contends support his demand for a reversal.

Mrs. Kang testified: That she had on several different occasions previous to the first day of April, 1927, accompanied the defendant in the night-time on rides in the latter’s automobile, which was a Studebaker; that at some time

The circumstances upon which the People relied at the first trial for corroboration of the testimony of Mrs. King are fully and clearly stated in our opinion disposing of the former appeal as follows: “The Studebaker automobile owned by the defendant and taken from his possession a few days after the alleged larceny, was found to be equipped with three smooth tires and one tire comparatively new. The three smooth tires were on the front wheels of the automobile and on the right rear wheel thereof. The comparatively new tire with the tread thereon still intact was found upon the left rear wheel of the defendant’s automobile. As stated herein, rain had fallen on the day preceding the night of the alleged larceny. The automobile tracks alongside the highway in the neighborhood of the Frishholz barn, discovered the morning after the larceny, discloses that they were made by an automobile on which three of the tires were smooth and that the tire on the left rear wheel was comparatively new and the tread was intact. An examination of this tread was made by witnesses familiar with the different makes of tires, and these witnesses testified that the tracks made by the tire on the left rear wheel of the car that was stopped along the Frishholz barn on the night of the larceny were made by a Federal tire, and that the left rear wheel of the defendant’s automobile was equipped with a Federal tire having a like tread with the tire that made the marks to which we have just referred. The testimony also showed a number of foot tracks leading from the place where the automobile was stopped to and from the Frishholz barn. These tracks indicated that a man and a woman had participated in the larceny. The man’s tracks were large; the woman’s tracks were small. Measurements were made of these tracks, and especially of the tracks made by the larger of the two persons participating in the larceny. The length of these tracks was found to be identical with the length

Precisely the same circumstances as were corroborative of Mrs. King’s testimony were brought out at the second trial. In the opinion on the former appeal, this court declared that the circumstances as narrated in the foregoing excerpt tended to connect the defendant with the commission of the crime charged in count one, “and sufficiently fills the measure of proof required by section 1111 of the Penal Code.” We adhere to that declaration not only as in its application to the first trial, but also as in its application to the last or second trial. Section 1111 of the Penal Code provides:

“A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. ’ ’

In People v. McLean, 84 Cal. 480 [ 24 Pac. 32 ], it is stated that, while the corroborating evidence in that case was not strong, and that more is required by way of corroboration than to raise a mere suspicion (People v. Thompson, 50 Cal. 480 ), “yet the corroborating evidence is sufficient if it, of itself, tends to connect the defendant with the commission of the offense, although it is slight, and entitled, when standing by itself, to but little consideration.” (See, also, People v. Melvane, 39 Cal. 614 ; People v. Garnet, 29 Cal. 622 ; People v. Clough, 73 Cal. 351 [ 15 Pac. 5 ]; People v. Blunkall, 31 Cal. 778 , 783 [ 161 Pac. 997 , 999] ; People v. Miller, 65 Iowa, 60 [ 21 N. W. 181 ] ■ People v. Mayhew, 150 N. Y. 346 [ 44 N. E. 971 ].)

It is not necessary that we should herein analytically examine the circumstances constituting the corroborating proof in this case to make it clear that, as such proof, they are sufficient under section 1111 of the Penal Code. The significance of those circumstances as corroborating proof

It is next objected that the court erred to the prejudice of the defendant’s rights by allowing the People to introduce evidence addressed to the proof of the charges contained in counts two and three of the indictment. At the first trial of the accused on all of the four counts set forth in the indictment, the People, as this court correctly declared in its former opinion, utterly failed to introduce evidence corroborative of the accomplice, Mrs. King, as to counts two and three, and it was charged by counsel for the defendant that the prosecuting officers knew, at the beginning of the second trial, that they would not be able to present such corroborating evidence, because there was, as they knew, no such evidence available to them. It was hence objected that the testimony by Mrs. King regarding those counts would bring into the ease proof of the commission by the defendant of other crimes which the prosecuting officers knew from the very beginning could not be legally proved. When objection was made in the court below to the evidence, special counsel for the People stated that he intended to introduce two witnesses who were not called to testify at the former trial and whose testimony would corroborate that of Mrs. King as to counts two and three. The judge, in overruling the objection, in effect stated that he had no reason for assuming that the prosecuting officers were not acting in good faith in the matter. It turned out, however, that the People were unable to present such corroborating proof. If the prosecuting officers at all times knew that they would not be able to corroborate the testimony of Mrs. King as to counts two and three, they certainly would be subject to just censure' for attempting to prove the crimes alleged in those counts. But, like the court below, we cannot say but that those officers in good faith believed that they could make the proof required but were in that particular disappointed by the parties by whom they expected to make it. We must assume, in the absence of a contrary showing, that, at the time they stated that they had the corroborating testimony referred to, they honestly believed that they could make the required

While the jurors were being examined upon their voir dire, in which proceeding the judge of the court took a part, the latter stated to the talesmen that “it will develop in this case that there are others who are not being prosecuted, .or at least haven’t been prosecuted up to this time. . . . Now, if the jury are going to refuse to convict this man solely on that account, what is the use of trying him, because that will be the fact.” In its charge to the jury the court repeated substantially the foregoing statement in the following language: “The fact that others have not been arrested or not being prosecuted at this time is not before you and must not be considered by you for any purpose and not to be allowed to influence your verdict.” It is argued by counsel for the defense that the effect of the foregoing statements to the jury was to tell the latter that, in deliberating upon the question of the guilt or innocence of the accused, they were not to consider for any purpose the testimony of any witness who the evidence might tend to show was’ connected in some way with the commission of the offense stated in count one. We cannot agree with that interpretation of the instructions in question. The court was right in stating to the jury that they had no right to take into consideration the fact that others who might have been connected with the commission of the crime were not being or had not been prosecuted; and in so stating that proposition to the jury the court used no language which a person of average intelligence would in

The defendant complains of the refusal by the court to give several instructions which he proposed. Those of said instructions which were correct involved the statement of legal propositions which were covered elsewhere by the court’s charge. One of the instructions was to the effect

The defendant seems to have had a fair and impartial trial and, so far as we can judge from the record before us, was justly as well as legally convicted.

The judgment and the order are affirmed.

Finch, P. J., and Plummer, J., concurred.