Opinion
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
John D. Whaley, for Appellant.
Attorney-General Johnson, for Respondent.
JUDGES: In Bank. Searls, C. Foote, C., and Belcher, C. C., concurred.
OPINION
SEARLS, Judge
The defendant was convicted of the crime of robbery, averred to have been perpetrated at the ci ty and county of San Francisco, by forcibly, [13 P. 78] violently, etc., taking from one Maria Schaefer the sum of five hundred dollars.
At the trial the prosecuting witness, Maria Schaefer, had detailed the particulars of having drawn money from the Hibernia Bank in the presence of defendant, of her placing it in a satchel, and she related how she went to Silver Street by the street-cars; how defendant followed and knocked her down; how she held to the satchel, and he struck her again and got the satchel containing the money from her.
Thereupon the court, against the objection of defendant, permitted the prosecution to put the following question:
" Q. -- It was taken from you against your will, was it?
" Yes, sir."
And the further question, as follows:
" Q. -- And by means of this force?
" A. -- He took it with force."
The examination of a witness in the trial of a cause is a matter committed to the sound discretion of the court, and in the exercise of that discretion leading questions may be permitted or denied.
It is apparent from the testimony of the witness that she was a foreigner who did not speak the English language with fluency. Under such circumstances, and in view of the fact that the witness had in substance stated the facts embodied in the questions put by the prosecution, there was no abuse of discretion by the court in permitting the questions. (Code Civ. Proc., secs. 2044- 2046; Moran v. Abbey , 63 Cal. 56; Green v. Gould, 3 Allen, 466; Hopkinson v. Steel , 12 Vt. 582; Parsons v. Huff , 38 Me. 187.)
It is next contended that the court erred in its charge to the jury, in defining the crime of larceny and in noting the features which distinguish that crime from robbery.
The jury was first instructed as to what constitutes robbery; in which the essentials requisite to that offense, including the force or fear necessary, were set out at length.
The court then defined grand larceny and petit larceny substantially in the language of the Penal Code.
Subsequently, in defining the felonious taking of property from the person as constituting grand larceny, the court said: "Any stealing or taking from the person feloniously and violently, and with the intent to deprive the owner of it, is grand larceny, providing the property has some fixed value. As I said a moment ago, the forcible and felonious taking from the person of another of one dollar is just as much grand larceny as if it were one thousand dollars."
It will be observed that the court was here impressing upon the minds of the jurors a specific fact, viz., that larceny committed by the felonious taking of property from the person of another was grand larceny, without reference to the value of the property taken.
In doing so, he inadvertently, as we suppose, used the terms "forcible" and "violently," terms properly applicable in defining robbery, but not necessary to constitute larceny.
The court later on in its instructions again defined the difference between robbery and larceny quite distinctly, and while the definitions hereinbefore quoted were not technically correct, yet we cannot see that the defendant was injured thereby.
He was convicted of robbery.
Robbery is larceny, with the element of force or intimidation added.
The tendency of the instruction objected to, if indeed it tended to mislead the jury, which we think improbable, could only be to induce them to find the defendant guilty of the lesser crime of larceny rather than of robbery, with which he was charged in the information.
The crime with which defendant was charged was a grave offense.
The manner of its execution was peculiarly outrageous; and while the judgment of imprisonment for fifty years was exemplary, we do not find therein any cause for which we can reverse the judgment.
The judgment and order appealed from should be affirmed. The Court. -- For the reasons given in the foregoing opinion, the judgment and order are affirmed.