Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 17 Cal. 354 at 362.
Appeal from the Court of Sessions of the city and county of San Francisco.
Indictment for larceny, the title being as follows:
" State of California: In the Court of Sessions of the city and county of San Francisco. August term, a. d. one thousand eight hundred and fifty-nine.
" The People of the State of California vs. James Mulhare and John Connor.
" James Mulhare and John Connor are accused by the Grand Jury of the city and county of San Francisco, State of California, by this indictment, found this eleventh day of August, a. d. 1859, of the crime of grand larceny committed as follows: The said James Mulhare and John Connor on the first day of August, a. d. 1859, at the said city and county, State aforesaid, four hundred and fifty-four and one-quarter ounces of gold dust of the value of $ 7,265, of lawful money of the United States, and four buckskin bags of the value of one dollar, of the personal property, goods, chattels, and effects of Ridgley Greathouse and George S. Greathouse, then partners doing business in Yreka, in the county of Siskiyou, State aforesaid, under the firm name and style of Greathouse & Brother; and one hundred and fifty-seven and one-quarter ounces of gold dust of the value of $ 2,800; three buckskin bags of the value of one dollar, of the personal property, goods, chattels, and effects of Thomas S. Fiske, doing business in the city and county of Sacramento, under the name of Thomas S. Fiske & Co.; and one leather bag of the value of seven dollars, lawful money of the United States, of the personal property, goods, chattels, and effects of Minthorne M. Tompkins, then and there to wit: at the city and county of San Francisco, being found, feloniously and unlawfully did steal, take and carry away, contrary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the people of the State of California.
" And in order to set forth the commission of said crime of grand larceny by said James Mulhare and John Connor in different forms and under different counts, the said James Mulhare and John Connor are further accused," etc. Then follows a charging of the offense as in the above first count, excepting that the property is all alleged to belong to Minthorne M. Tompkins. Then follows a third count in the same style as the second, excepting that the property is alleged to belong in gross to eleven persons named, but different from the alleged owners in the two preceding counts.
The title of the count at the arraignment, plea, and trial is thus:
" In the Court of Sessions of the city and county of San Francisco.
" The People of the State of California vs. James Mulhare and John Connor.
In open Court, April 12th, 1859.
Arraignment.
" This case being called, defendants attended by their counsel, etc.
" The People of the State of California v. James Mulhare and John Connor.
Tuesday, August 16th, 1859.
In open Court.
" Plea of not guilty.
" This case being called, defendants appear, etc.
" The People of the State of California v. John Connor.
In open Court, Aug. 31, 1859.
Trial.
" The District Attorney now moves the trial of James Mulhare and John Connor," etc.
The record as to the challenge of two jurors, is thus: " J. H. Redington and William Sharron were challenged for actual bias, whereupon S. H. Dwinelle, C. M. Chamberlain, and D. P. Belknap were appointed triers, and being duly sworn and charged, they find the challenge as against J. H. Redington true, and as against William Sharron untrue."
Defendants severed in their trial, and Connor was found guilty on the first count of the indictment, nothing being said in the verdict about the other counts. He appeals.
COUNSEL:
I. The indictment in this case is entitled of a Court de facto, and not of a Court de jure, therefore all proceedings therein are void.
The Constitution of the State of California says: " The County Judge with two Justices of the Peace, to be designated by law, shall hold Courts of Session with such criminal jurisdiction," etc. (Art. 6, sec. 8, Const.)
" There shall be in each of the counties of this State a Court denominated a Court of Sessions, with the jurisdiction conferred by this chapter." (Art. 660, sec. 48, 152, Wood's Dig.)
It thus appears by the Constitution, that the County Judge, with two associates, shall hold Courts of Session, and the Legislature having established in each county of the State Courts denominated a " Court of Sessions," therefore the legal constitutional Court is the " Court of Sessions of the county of San Francisco."
" The indictmentshall contain the title of the action, specifying the name of the Court to which the indictment is presented," etc. (Art. 1534, sec. 237, 288, Wood's Dig.)
The title of the Court by the statute is made a material element thereof, and if an unauthorized title is used, all proceedings are irregular.
II. The indictment in this case is bad, for duplicity and uncertainty in the statement of the offense alleged therein.
In the statement of the larceny alleged in the first count of the indictment it charges firstly, a larceny of the personal goods and chattels of Greathouse & Brother, and describes the property; secondly, in the same count it charges the larceny of the personal goods and chattels of Thos. S. Fiske; and lastly, a larceny of the personal goods and chattels of Minthorne M. Tompkins.
Each statement descriptive of the property and ownership is separate and distinct, and independent of any other, and by the mode of statement, establishes therein separate and distinct larcenies in one count.
We may here remark that we consider but the first count, as it is the only one upon which a verdict was rendered and the judgment of the Court pronounced.
" Theindictment shall charge but one offense, but it may set forth that offense in different forms under different counts." (Art. 1537, sec. 241, 288, Wood's Dig.)
In the statement of the offense, three separate and distinct properties and owners are described, and not three separate parcels of properties, with joint ownership therein by the parties named in the indictment. The proposition in this mode of statement results in showing three distinct larcenies. Upon each one an indictment would lie, therefore the indictment is bad for duplicity, because, if indicted hereafter for a larceny of the goods of Greathouse & Brother, a plea of autrefois convict could not be successfully pleaded, for the verdict of the jury does not show whether it was founded upon proof of the larceny of the goods of Greathouse & Brother, Thos. S. Fiske, or Minthorne Tompkins. Proof of a larceny in either case is not sufficient to ground a conviction of larceny of the remaining described properties and owners, therefore, in addition to the plea of autrefois convict, to avoid a subsequent indictment of the larceny of the property of Greathouse & Brother, proof aliunde the plea would be necessary.
III. The arraignment is a nullity upon its face, for it does not appear to have been in a legally constituted Court.
The record does not show a sitting of the Court of Sessions was duly and legally holden, at the time of the arraignment.
The term Court is generic, therefore the name of the Court should appear, and the names of the Judges present, to enable us to conclude whether it had a legal existence, and as a consequence the right to do the act set forth as done in " open Court." These are affirmative elements, and must be set forth in the indictment to show a legal existence of the Court, so as to secure to the appellant all his rights, as well as to protect him against the exercise of unauthorized power. If the presiding Judge and one Associate Justice occupied the Bench, they did not constitute a Court, and how can the Supreme Court decide whether the proceedings had in " open Court," on the arraignment of the appellant, was a legally constituted Court?
IV. The plea to the indictment and trial of the cause was not had in a Court legally constituted and organized at the respective times of pleading and trial.
The objections under this point are the same as underthe preceding.
V. The Court erred in submitting the competency of two jurors, challenged for actual bias, to triers at the same time.
" The triers must thereupon find the challenge either true or not, and their decision is final. (Art. 1621, sec. 358, 297, Wood's Crim. Prac.)
" The challenges of either party need not be taken at once, but they must be taken separately in the following order," etc.
" To an individual juror for actnal bias." (Sec. 360, 297, Id.)
The error here urged is vital, for by the double issue submitted to the triers, their judgments were embarrassed and defendant was injured, by the issue found against him, in denying his challenge of one of said jurors.
The Court below erred in failing to file its written charge to the jury, it appearing from the record and proceedings that the jury were charged in writing by the Court, and the same is not on file. As this Court will reverse for error in the instructions of the Court below to the jury, even though not excepted to, (People v. Levison , 16 Cal. 98,) the instructions should be made a part of the record.
A. M. Heslep, for Appellant.
Thos. H. Williams, Attorney General, for Respondent.
I. The statute(Wood's Dig. 2d ed. 289, art. 1541) declares that the indictment shall be sufficient, if it can be understood therefrom " that it is entitled in a Court having authority to receive it; though the name of the Court be not accurately set forth."
Article 1542 declares that defects in matters of form, which do not tend to prejudice the defendant, shall be disregarded.
The Consolidation Act of San Francisco of 1856 united the two governments into one, under the corporate name of " City and County of San Francisco; " and although the " county" for some purposes still exists, the usual practice is in all legal matters to use the new corporate name.
The jurisdictional limits of the city and county are now the same, and all Courts held in or for one are held equally in or for the other. The officers, County Judge, and Justices of the Peace, who preside in the Court of Sessions, as well as the ministerial officers in attendance upon the Court, are all selected as officers of the " city and county." (Section 6 of the Consolidation Act, 147, Stat. 1856.)
There can therefore be no difficulty in ascertaining from this indictment that it is entitled in a Court authorized to receiveit.
II. The indictment sets forth but one offense. The offense is set forth in different forms, and in different counts; but this is warranted by the Criminal Practice Act. (Wood's Dig. 288, art. 1537.)
The gist of larceny is the felonious stealing of the property of another. The felonious taking constitutes the larceny; and the thief may be prosecuted to conviction, although the name of the injured party may not be known. Hence the only necessity for giving the name of the owner is as matter of description. If then, in describing the offense and for that purpose, one name is given in one count and another in a second count, in connection with the ownership of the property stolen, and it appears from the whole statement that the same act is complained of in each count, the indictment is not defective. In the course of criminal practice nice distinctions often may arise as to the ownership of property, to avoid which it is usual to plead in the manner adopted by the District Attorney in this case.
A conclusive answer however to this objection is, that it could only have been taken by demurrer; and not having been so taken, it is deemed waived. (Wood's Dig. 292, 293, art. 1574, 1581.)
III. As to appellants' third and fourth points, all presumptions are in favor of the regularity of the proceedings of the Court.
The law does not require the facts to be set forth in the record, the absence of which are complained of. And if it did, the failure of the Clerk to make the entry would not be cause of reversal. If it was, no judgment of the lower Courts would ever be sustained. The defendant being appellant, must affirmatively show error committed in the Court below, and not a mere failure of the Clerk to discharge his duties. He must show that the Court failed to do some act or thing which the law enjoined, or did something which it forbids.
IV. The answer to appellant's fifth point is, that it has no foundation in fact. The record does not show that the competency of two jurors was tried and decided at the same time. And if it did so show, such a course would not be error.
V. Appellant's sixth point is answered under the third and fourth assignments, to which may be added that the record need not show the filing of the instructions--the entry must appear upon the paper. The presumption is that the instructions are now on file, and ifthe defendant's counsel, who must have directed that which he desired to constitute the record, failed to have them as a part of the transcript, it is his fault. If he wants them, he can get them by certiorari or mandamus, as the case may be.
JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. and Cope, J. concurring.
OPINION
BALDWIN, Judge
On petition for rehearing, Baldwin, J. delivered the opinion of the Court--Cope, J. concurring.
We deny the petition for a rehearing. Although we did not consider it necessary to go into an elaborate opinion in this cause, and the others dependent upon the same or similar principles, we gave a full consideration of every point made by the appellants. In reference to the point that the record did not show that the instructions were filed or made part of the record, we disposed of that matter by simply stating the proposition that the failure to file the instructions is not an error for which we could reverse the judgment, unless, indeed, something else appeared than the mere fact that the record showed that the Court gave written instructions to the jury, and the transcript omitted the instructions. The instructions may have been in writing, and been lost or misplaced. The Clerk may have omitted to discharge his duty in preserving or in filing them, or they might possibly be abstracted. So any other paper in the record may, at the time of making the transcript, be out of the files, but this is no ground for the reversal of the judgment. The presumption is that the Court has acted regularly--that the instructions given are proper--and it must be affirmatively shown that error has been committed. This is not shown by the mere fact that the Court gave written instructions, and those instructions were not, at the time of making up the transcript, among the papers.
The question upon the sufficiency of the indictment was maturely considered, and after an attentive examination of the argument of the appellant, we adhere to the opinion before expressed.