Opinion
Department Two
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. B. N. Smith, Judge.
COUNSEL:
Tanner & Taft, for Appellant.
W. F. Fitzgerald, Attorney General, and Charles H. Jackson, Deputy Attorney General, for Respondent.
JUDGES: Temple, J. McFarland, J., and Henshaw, J., concurred.
OPINION
TEMPLE, Judge
The defendant was convicted of the crime of grand larceny, and this appeal was taken by him from the judgment and from a denial of a new trial.
1. The first point made is that the court erred in overruling the defendant's motion to set aside the information because the defendant had not been legally committed by a magistrate. This is based upon the contention that there is legally no such officer as the clerk of the police court of Los Angeles, before whom the complaint upon which the warrant of arrest was issued purported to have been sworn to, and it is further contended that, conceding the existence of such an officer, still such officer is not a magistrate, and under section 811 of the Penal Code the complaint must be sworn to before a magistrate.
The first proposition was decided adversely to the appellant in In re Mitchell , 120 Cal. 384. The second proposition was also decided adversely to him in People v. Vasalo , 120 Cal. 168.
2. It is also contended that the defendant was not properly committed, because he was jointly charged with one Tollman, and demanded from the magistrate a separate examination. The statute does not confer this right upon an accused person, and, if it did, the denial of it is not a ground for setting aside the information. Such an error (granting it to be one) would not be jurisdictional.
3. A demurrer to the information was interposed, and upon that the point is made that the description of the property alleged to have been stolen is insufficient. It is charged that the accused did "take, steal, and carry away from the person of Walter McStay one gold-filled case watch and chain [53 P. 1097] and one diamond ring." The description is a very general one; but the fact that the property is charged to have been stolen from the person of Walter McStay will prevent any embarrassment at the trial, and any difficulty in establishing a plea of former conviction in the possible event of a second prosecution. The offense is sufficiently described, and that is all that is necessary.
4. The contention that there was not sufficient evidence to sustain the verdict cannot be maintained. The evidence is ample, though conflicting.
5. In the instruction to the effect that the jury must be convinced of the guilt of the defendant "beyond all reasonable doubt," the court changed the word "all" to "a." The difference made, counsel has not been able to state, but they think that the fact of the change may have induced the jury to believe that the word "all" was too comprehensive, and that they need only be convinced beyond some particular reasonable doubt. Why the judge made the change I cannot imagine, nor yet how any injury could result from the change.
6. The court refused two instructions in regard to circumstantial evidence. One refers to criminal cases, "where the prosecution rely upon circumstantial evidence for a conviction"; the other case "where circumstantial evidence is relied upon to connect a defendant with the commission of a public offense." It cannot be said that the reliance in this case was entirely, or mainly, upon circumstantial evidence. I think two of the witnesses testified to seeing the defendant in the act of removing the ring from the cravat of the prosecuting witness, while he was asleep. True, they could not see the ring during the operation, for the hand of the defendant was in the way, but they had seen the ring upon the cravat and saw him apparently slipping it off, and noticed, after the operation, that it was gone. This can hardly be said to be a case of circumstantial evidence.
7. One Summerville was examined as a witness on behalf of the defendant to prove his good moral character. On cross-examination the district attorney asked him who he had heard speak of the defendant. The witness mentioned one Mr. Davis, who was an attorney, and said that Mr. Davis had said defendant was a nice man. He was asked if Mr. Davis had not said that Burns had paid him in full for defending him upon a charge of larceny. The witness replied "he did not." At this point the defendant objected, and asked the court to strike out the evidence, which the court did. It is contended that this was misconduct on the part of the district attorney, and that a new trial should be had on that ground. Whether the district attorney was guilty of misconduct or not depends upon whether the question was asked in good faith or not. If the district attorney had reason to think there was no truth in the charge of former delinquency so hinted at, his conduct was most reprehensible; but we have no right to assume that such was the case. If the district attorney did have reason to expect an affirmative answer, it is not entirely clear that the examination was not proper; at all events, it is not so plain that we can say that the question was not asked in good faith, and that it was not proper to take the judgment of the court upon the subject. Objection is made to the refusal to give two other instructions, not noticed heretofore, but it is evident as to them that the court was only asked to repeat charges already given, and there can be no benefit in our going over them seriatim .
The judgment and order are affirmed.