People v. Savage

152 P.2d 240, 66 Cal. App. 2d 237, 1944 Cal. App. LEXIS 1171

Opinions

MOORE, P. J.

Appellant was convicted of grand theft by a jury. Prom the judgment and from the order denying his motion for a new trial he brings this appeal on the grounds of (1) insufficiency of the evidence, (2) misconduct and prejudice of the trial judge, (3) admission of incompetent proof, and (4) refusal to give requested instructions. He sought to establish an alibi and sets forth in his brief a résumé of the testimony of a number of witnesses who supported that plea. However, the circumstances shown and the extrajudicial admissions of appellant were sufficient to warrant the verdict by which we are bound in the absence of prejudicial error.

Prior to August 11, 1943, appellant and one Ethel Waters, the prosecutrix, had been friends. They had danced together in “Cabin in the Sky” in New York in 1941. In that year they came with their troupe to Los Angeles where prosecutrix and a number of other persons occupied a house on South Hobart Boulevard. Appellant was one of that party and he slept on the third floor of the house from December, 1941, until August 2, 1943, with no tasks to do and no payments to make for his keep. He worked only intermittently.

On June 30, 1943, prosecutrix concealed in one of her wardrobe trunks $10,150 in money and jewelry worth $13,400. She locked her trunks and, with the keys in her purse, accompanied by certain members of her household left for San Francisco to fill a theatrical engagement, leaving appellant with others in her home where he remained until the day of prosecutrix’ return, August 2, 1943. He then delivered to her the keys to her house and took quarters elsewhere. In her dressing room she found the card of “A. B. C. Locksmith, Keys Made for any Lock, ’ ’ never seen by her before. One week later she opened the trunks only to find one in disarray and her jewels and money absent from the other. She had neither invited a locksmith to her house nor authorized Savage to have any keys made or to take any of her possessions. When appellant called on August 11 at prosecutrix’ telephonic request she reminded him of his bringing strangers into her house without permission during her absence and stated that unless he helped find her things she would have his friends investigated. Although she had made no mention of the items of her loss his reply was: “Don’t you dare have anything done to my friends, because I have got your money and your jewelry, and there is nothing you can do about it, because it is my word against yours. ... I’ll return them only when God makes me.” On the following day he told her by telephone that he would return the “balance” of her property on conditions. At her home the same day he specified his conditions, to wit: “that you sign over this house . , . and your continental ca.r in my name.” During prosecutrix’ absence appellant had brought his associates into her home, had there engaged in gambling and had displayed stacks of currency. He had employed Messrs. Shane and Fream, locksmiths, to come to the Hobart house on July 5, 1943, to make keys for the two trunks and Miss Waters’ dressing room. For the three keys he paid $6.50 to Shane, who left the card of “A. B. C. Locksmith.” No part of her money or jewels was ever restored to the prosecutrix.

Proof of the foregoing facts established that personal property worth in excess of $24,000 was taken from the possession of its owner without her consent and with intent to deprive her thereof permanently. That this was larceny is fundamental. (People v. Edwards, 72 Cal.App. 102, 114 [236 P. 944].) That such larceny is one of the offenses constituting grand theft is statutory. (Pen. Code, §484; People v. Cook, 10 Cal.App.2d 54 [51 P.2d 169] ; People v. Myers, 206 Cal. 480, 483 [275 P. 219].) In determining that the evidence is sufficient we are required to assume the truth of the facts impliedly found and all inferences fairly to be drawn from the evidence. (People v. Hannon, 44 Cal.App.2d 484 [112 P.2d 719]; People v. Newland, 15 Cal.2d 678 [104 P.2d 778] ; People v. Hennessey, 201 Cal. 568, 571 [258 P. 49].) The circumstances shown are unimpeachable. The testimony of prosecutrix as to the admissions made by appellant was corroborated by two members of her household. Neither his denials of guilt nor his proof of an alibi can avail him as against the verdict. (People v. Latham, 43 Cal.App.2d 35, 38 [110 P.2d 101] ; People v. Wright, 26 Cal.App.2d 197, 205 [79 P.2d 102].) The corpus delicti was established by the proof of the wrongful removal of the valuables from their-locked repository by a human agency. (People v. Harvey, 25 Cal.App.2d 368, 371 [77 P.2d 487].) The connection of appellant with the crime is established by the circumstances above detailed and by his admissions to his victim. That the taking of the property was with felonious intent is shown by the means of gaining its possession in the absence of the owner, by no justification of the act, by the continued deprivation of the owner and by the declarations of the thief. (People v. Payne, 117 Cal.App. 108, 112 [3 P.2d 328].)

There was no misconduct of the trial judge resulting in prejudicial error. Practically all of the court’s criticized comments were made out of the hearing of the jury in colloquies with counsel relative to proposed offers of proof. If in such, private discussions the judge made animadversions which indicated prejudice or bias no harm was done to appellant. It is the duty as well as the privilege of a jurist to gain and to nurture convictions upon ethical and juridic concepts. While prosecutrix was under cross-examination appellant undertook to show her intimate relationship with him. Objections to the questions were sustained as not proper cross-examination. It was during the private discussion of these offers and objections that such remarks of the court were made for the purpose of discouraging counsel from unnecessarily besmirching the character of the prosecutrix. The court acts within its jurisdiction in rejecting offending questions and in directing the course of the trial. (People v. Yuen, 32 Cal.App.2d 151, 160 [89 P.2d 438] ; People v. Murphy, 17 Cal.App.2d 575, 588 [62 P.2d 592].) At one time during the testimony of the prosecutrix the judge apparently thought she became confused by a succession of questions, objections and motions to strike. After the prosecutor had attempted to explain the rules governing the admission of testimony, the judge decided to lend a hand by addressing the following to the witness: “Miss Waters, I will help you out on this. You answer the questions they ask you just simply, one at a timé. Between the two of them they will think of everything that is necessary, and it will go faster that way. ’ ’ Appellant contends that the words of the court illustrate that the judge was sympathetic with the prosecutrix. To us it appears to be only an attempt by the judge courteously to direct the witness properly to answer the questions. Although he does not assign it as error, he complains that he was prejudiced at another time when in response to an objection the judge said: “That is an oblique answer.” Neither is any occurrence concomitant or subsequent suggested as a reason why that observation by the judge was prejudicial, nor is any rule or reason recited as inhibiting the court’s commenting upon an answer which is the target of a motion. The court may without impropriety and without prejudice to a prisoner on trial give his reasons for a ruling. (People v. Mayes, 113 Cal. 618, 622 [45 P. 860].)

Appellant says that “so enraged was the judge at the defendant who was at liberty on bond that he ordered defendant committed to jail during the remainder of the trial without any apparent reason therefor,” and that such action indicated hostility toward appellant. We discern no animosity toward the accused in the court’s proposal. Any person on trial may be committed. (Pen. Code, § 1129; People v. Nickell, 22 Cal.App.2d 117, 123 [70 P.2d 659]; People v. Williams, 30 Cal.App.2d 234, 240 [85 P.2d 974].) It is true that out of the jury’s presence the court stated to counsel that he would commit the defendant but wished that it could be done in such a way that the jury would gain no knowledge of the incarceration. That the court made such, suggestion yet entered no order is not proof that the judge was inimical to appellant. Neither could such a statement made privately to counsel cause prejudice. (People v. Kynette, 15 Cal.2d 731, 759 [104 P.2d 794]; People v. Johnson, 11 Cal.App.2d 22, 24 [52 P.2d 964]; People v. Ramos, 3 Cal.2d 269, 273 [44 P.2d 301].)

In no instance pointed out by appellant where the court’s language is quoted by appellant is prejudice shown to have been suffered. Neither was any statement of the court deroga-, tory of appellant nor did any one of them disclose the judge’s personal opinion as to the truth of any testimony or as to the guilt of the prisoner. On the contrary, an instruction positively declared that no opinion had been intended and that the jury were the sole and exclusive judges of the evidence and of the credibility of the witnesses. Had any of such statements been harmful to the defense no advantage could be taken of it on appeal in the absence of an assignment of misconduct and a request to admonish the jury to disregard the remark. (People v. Boggs, 12 Cal.2d 27, 40 [82 P.2d 368] ; People v. Wooley, 15 Cal.App.2d 669, 673 [59 P.2d 1065].) In the absence of a showing that a remark of the court prejudiced the defendant the assignment is meaningless. (People v. Boljat, 36 Cal.App.2d 644, 648 [98 P.2d 513].)

At one stage in the proceeding appellant’s counsel moved to strike an answer given by the prosecutrix, whereupon Miss Waters replied, “I suggest you do. You are not trying this case on charity. He is paying my money to try it, and I am not going to let you insult me.” The Court: “I would admonish the witness, but I think the witness ought to be able to protect herself.” The ruling was not correct. When, Miss Waters interrupted the proceeding with her lecture to appellant’s counsel it was the duty of the court to strike her language from the record, to admonish the jury to disregard it, and to instruct the' witness to answer the questions propounded. But it does not appear that court’s neglect, so to rule materially prejudiced appellant before the jury. The refusal to admonish the witness was rather a rebuke to the counsel personally than to the appellant himself. In the absence of a showing that reproof of counsel was prejudicial to the prisoner at the bar it is deemed to have been harmless. (People v. North, 81 Cal.App. 113, 121 [252 P. 1063] ; People v. Grider, 13 Cal.App. 703 [110 P. 586]; Const., art. V, § 4½.) So, also, where the accused at the trial neglects to assign the response of a witness or the language of the court as misconduct and to request the court to admonish the jury to disregard the objectionable remarks, an appellate court will not pass upon the assignment made for the first time on appeal. (People v. Boljat, supra; People v. Wooley, supra; People v. Roebling, 14 Cal.App.2d 586, 588 [58 P.2d 929] ; People v. Myers, 1 Cal.App.2d 620, 625 [37 P.2d 191] ; People v. MacDonald, 167 Cal. 545 [140 P. 256] ; People v. Todd, 9 Cal.App. 2d 237, 245 [49 P.2d 611]; People v. Von Badenthal, 8 Cal. App.2d 404, 411 [48 P.2d 82] ; 24 C. J. S. p. 268.)

The third assignment is that the court over objection admitted the testimony of the two locksmiths that they had identified appellant at a police show-up. After those witnesses had identified Savage as the man for whom they had made the keys at Miss Waters’ residence they testified that they next saw him in the shadow-box of the sheriff’s office. It is not contended that either locksmith at the sheriff’s office pointed out to the officers the prisoner as the purchaser of the keys. The testimony which appellant says was prejudicial was that in which the locksmiths testified that they had seen him at the show-up. This is a far cry from testimony that they had pointed appellant out to the sheriff at the show-up as the man to whom they had delivered the keys on July 5, 1943. It would have been prejudicial to allow the locksmiths to testify that at the show-up they identified appellant to the officer as the purchaser of the keys and thereby corroborate their testimony. But after a culprit has been identified in the courtroom it is competent proof for the witness to relate that on prior occasions, either before or after the crime, he had seen the prisoner and knew him to be the same person who had committed the offense. (State v. Buschman, 325 Mo. 553 [29 S.W.2d 688, 70 A.L.R 904] ; State v. Egbert, 125 Iowa 443 [101 N.W. 191]; Martin v. State, 100 Fla. 16 [129 So. 112, 115] ; Yarbrough v. State, 105 Ala. 43 [16 So. 758, 788].) The authorities cited by appellant on this point (People Cotton, 117 Cal. App. 469 [4 P.2d 247] ; Murphy v. State, 41 Tex.Crim.Rep. [51 S.W. 940] ; People v. Jung Hing, 212 N.Y. 393 [106 N.E. 105, Ann.Cas. 1915D 333]; Warren v. State, 103 Ark. 165 [146 S.W. 477, Ann.Cas. 1914B 698]; People v. Feary, 85 Cal.App. 433 [259 P. 491]) are readily distinguishable. The vice of the trial court’s ruling in each of these eases except one lies in the fact that the identifying witness was allowed to tell that on a previous occasion after the crime he had said to others that the party then before him was the perpetrator of the crime. In the Cotton case the witnesses were erroneously permitted to tell of the means whereby they had made the identification. However, the Cotton judgment was affirmed for the reason that upon a review of the whole record it appeared that the error was not prejudicial. (See People v. Dyer, 30 Cal.App.2d 590, 593 [86 P.2d 852].)

It is contended that appellant was prejudiced by the court’s refusal to give the following instruction: “You are instructed that in order to convict the defendant upon evidence and circumstances it is necessary that not only all the evidence concur to show that he committed the offense or offenses with which he is charged, but that the circumstances are inconsistent with any other rational conclusion, and it is not sufficient that the circumstances proved coincide with, account for or render probable the proposition sufficient to be established by the prosecution, to wit, ‘that the defendant is guilty, ’ but the circumstances themselves must exclude to a moral certainty every other proposition hut the single one of guilt, or you, the jury, I charge you, must find the defendant not guilty of the offense or offenses charged in the information.” This instruction is not an accurate statement of the law and therefore no part of it should have been given. (People v. Housman, 44 Cal.App.2d 619, 628 [112 P.2d 944]; People v. Megladdery, 40 Cal.App.2d 643, 653 [105 P.2d 385]; People v. Rosa, 10 Cal.App.2d 668, 673 [52 P.2d 542].) It is the function of the jury to decide the guilt or innocence of a prisoner upon the evidence whether circumstantial or direct. (People v. Conkling, 111 Cal. 616, 628 [44 P. 314]; 8 Cal.Jur. 388.) The language of the rejected instruction implies that “evidence and circumstances” are two separate things. If it was intended by that phrase to refer to direct' evidence and circumstantial evidence, it failed of its purpose. As .requested it- is confusing. It would direct the jury that they must find that not only must all the evidence concur to prove that the accused committed the offense, but that the circumstances must be inconsistent with any other rational conclusion. Such is erroneous. The accused may offer any evidence contradictory of direct testimony and other proof of his innocence. The jury may properly choose to find in conformance with the evidence of the People and reject all of that admitted on behalf of defendant. (People v. Hightower, 40 Cal.App.2d 102, 107 [104 P.2d 378] ; People v. Young, 25 Cal.App.2d 148, 153 [77 P.2d 271] ; People v. Shellenberger, 25 Cal.App.2d 402, 406 [77 P.2d 506].) An instruction that attempts to deprive the jury of determining the credibility of the witnesses and the weight to be given to their testimony is erroneous.

In support of his claim that the refusal of the instruction was error appellant cites the case of People v. McClain, 115 Cal.App. 505, 510 [1 P.2d 1085].) But in that case the entire proof was circumstantial. The rejected instruction there was sound and proper. It related to nothing but circumstantial evidence. Where the proof is not entirely circumstantial it is not error to refuse an instruction requiring the jury to adopt that interpretation which would admit of defendant’s innocence and to reject that which would point to the g3iilt of the accused. (People v. De Voe, 123 Cal.App. 233, 238 [11 P.2d 26].) The court’s stock instructions abundantly covered the question of circumstantial and direct evidence. None other was necessary to the protection of appellant’s rights. (People v. Parchen, 37 Cal.App.2d 215, 223 [98 P.2d 1045].)

The judgment and the order denying a new trial are affirmed.

McComb, J., concurred.