People v. Stanhope

Defendant was charged in an information with the crime of grand theft for the unlawful taking of $250, the property of a Mrs. Barlow, to which accusation he entered a plea of not guilty, was tried before a jury, and convicted of the lesser offense of petty theft. His motion for a new trial having been denied and probation granted, the defendant appeals from the order denying him a new trial.

Stating the evidence most favorable to the prosecution, as we are required to do following a guilty verdict, we find in the record the following: For several months prior to May 30, 1939, the date of the alleged theft, defendant had resided at the rooming house of Mrs. Barlow, the complaining witness, in the city of Pasadena. According to the testimony of the complaining witness, on the morning of May 30th, at about 11 o’clock, she gave to defendant $250 in cash and a check for $142.46 to be deposited in the bank. Earlier that

The testimony of Mrs. Barlow was corroborated by her daughter, who testified that she was in the room where her mother was counting the money and that she saw her mother give the defendant some money and a check ■ that she counted out the money; that it was $200 or $250. The records of the banlj showed that the deposit had not been made, and Mrs. Barlow testified that defendant never returned the money to her.

As a first ground of appeal it is urged that the verdict is contrary to the law and the evidence. In support of this contention appellant asserts that the prosecution depended entirely upon the testimony of the complaining witness, Mrs. Barlow, and the latter’s daughter, both of whom it is asserted were thoroughly impeached. It cannot be denied that the record here indicates several inconsistencies in the testimony of Mrs. Barlow as well as contradictions of her testimony by witnesses who gave evidence at variance with her narrative of what occurred upon stated occasions. There is also some degree of uncertainty attached to the testimony of the complainant’s daughter, who was not sure whether the amount entrusted to appellant was $200 or $250, although she said she was present and saw her mother count out the money. We are, however, confronted with the constitutional provision that the- appellate courts are not authorized to review evidence, except where, on its face, it may justly be held that it is insufficient to support the ultimate issue involved, in which case it is not a review of a question of fact, but purely one of law. (People v. Haydon, 18 Cal. App. 543 , 553 [ 123 Pac. 1102 ].) Obviously, reviewing judges are in no position to determine the credit which should be accorded witnesses or to weigh their testimony. In accordance with the constitutional mandate the legislature has clothed the jury with the exclusive right to judge of the credibility of witnesses. (Code Civ. Proc., sec. 1847.)

It is next contended by appellant that the court erred in sustaining objections to questions asked during the cross-examination of the complainant concerning a trip allegedly made by her in company with appellant to San Diego, and also in sustaining objections to questions concerning discussions of marriage between complainant and appellant. As to the first line of inquiry, the ruling thereon was proper for the reason that before any objections were interposed the complainant emphatically denied ever going to San Diego with appellant and with equal vigor denied registering at a hotel with him. As to the other questions, concerning discussions of marriage by the witness with appellant, the latter suffered no prejudice from the adverse rulings thereon, because appellant himself, when called as a witness, testified fully with reference to conversations had with complainant wherein he claimed she urged him to marry her. Following this, Mrs. Barlow was called and denied any such conversations concerning marriage. It is elementary that the exclusion of evidence at one stage of the case, even if erroneous, is harmless if such evidence be subsequently admitted.

Appellant’s next contention, that he should have been convicted of grand theft or acquitted, is without merit.

Finally, appellant predicates error upon certain remarks made by the trial judge when he instructed the jury. The remarks complained of are as follows: “ ... So there is the simple ease for you right in a nutshell: Do you believe, or do you find, beyond a reasonable doubt, that Mrs. Barlow delivered to this defendant approximately $250? If you do, and you find that the money was not deposited, then the defendant is guilty as charged. ...”

The court fairly and correctly instructed the jury with reference to all issues raised by the pleadings or produced by the evidence. He thoroughly defined the difference between grand and petty theft and admonished the jury as to the elements necessary to be proved beyond a reasonable doubt before appellant could be convicted of either offense. Finally, the court advised the jury in unequivocal language that it was within their exclusive province to determine the facts of the case and to consider the evidence for that purpose, and in this connection said: “The Court cannot determine the facts for you, but may aid you by two methods: First, by giving you the rules of law to be used by you in arriving at the truth; second, by, at times, commenting upon the evidence within proper limitations.” Taken as a whole, the statement made by the court about which appellant complains amounts to nothing more than fair and general comment which a trial judge is now authorized to make. (Art. 71, sec. 19, Cal. Const.) The comment of the trial court herein complained" of was not contentious in character, nor did the court thereby attempt at any time to direct the return of a particular verdict. The defendant’s rights were not in any way violated. (People v. De Moss, 4 Cal. (2d) 469 [ 50 Pac. (2d) 1031 ] ; People v. Ottey, 5 Cal. (2d) 714

For the reasons herein stated, the order appealed from is affirmed.

York, P. J., and Doran, J., concurred.