Opinion
Department Two
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:
Reel B. Terry, for Appellant.
W. F. Fitzgerald, Attorney General, Charles H. Jackson, Deputy Attorney General, and W. S. Barnes, District Attorney, for Respondent.
JUDGES: Henshaw, J. McFarland, J., and Temple, J., concurred.
OPINION
HENSHAW, Judge
The defendant was charged with the crime of burglary, and by the jury was found guilty of burglary in the second degree.
Upon behalf of the people it was shown that after midnight a police officer passing the barber shop of one Antonia Thomas, heard a noise therein. The shop was in darkness. He attempted to open the door, but was prevented by some one within; an entrance was forced and the person within ran into the back room and hid under the bed. That person was the defendant. He appeared to be stupid from whisky or opium, but said, upon his arrest, that the barber had given him permission to sleep in the shop. This declaration was upon the trial supported by a witness for the defense, who testified that he, the defendant, Thomas and others, had been drinking at a neighboring saloon until about midnight, when they went together to the barber-shop. There they drank a bottle of whisky, and, the defendant being very drunk, Thomas suggested that he remain and sleep off his intoxication. The barber then took a number of razors to hypothecate for more liquor, and the party, after turning out the gas, left the shop with the defendant therein. They proceeded to the saloon of the witness' aunt, where more liquor was drunk. The razors were left with the witness as security, and upon the following day he returned them to Thomas. The defendant did not take the stand, and the other member of the party was reported as on his deathbed.
The barber, Thomas, testified that he had been drinking upon the night in question, and had been drinking with these men; that he had taken twenty or thirty drinks and was somewhat under the influence of liquor; but that he had not visited his shop that night with the defendant or with any one else; had taken no razors from it, and had not given defendant permission to enter or stay in it.
In this state of the case it cannot be said that there was no evidence to warrant a conviction. If the jury believed the witnesses for the people, as from the verdict it seems they did, the evidence fully warranted a finding of the defendant's guilt. The power of a jury in determining the weight to be given to testimony is, within the rules of evidence, exclusive and supreme, and appeals to this court in criminal cases do not lie from the verdict of the jury upon controverted question of fact, but solely upon propositions of law. (Const., art. VI, sec. 4; Pen. Code, sec. 1235.) We are not by this to be understood as declaring that a verdict of guilty, unsupported by any evidence, could not be reviewed upon appeal. It could, for such a verdict would be contrary to law, and, therefore, subject to reversal, because the appeal would present a question of law under the constitution. But we do mean to declare the rule which is unquestionable, yet sometimes lost sight of by counsel, that the decision of a jury upon legal evidence, in so far as this tribunal is concerned, is absolutely final and not subject to review upon appeal.
The jury found the defendant guilty of burglary in the second degree, and this is claimed to be error in that the crime as disclosed by the evidence could only have been burglary in the first degree. This contention has, however, been disposed of in the case of People v. Barnhart , 59 Cal. 381, where the court has said that it is a sufficient answer to such objection to say that the defendant is not prejudiced by the error complained of.
The indictment charged the commission of the crime against "John Maroney, alias James Forbes, alias Frank Moran, alias Frank Dolan," and defendant claims that he was prejudiced in the minds of the jury by the reading to them of this list of pseudonyms.
At ancient common law it was considered that no advantage could be taken of any error in the indictment as to the name [41 P. 1098] of the defendant, it being held that the accusation was directed against the prisoner by whatsoever name called. But by the statute of 1 Henry V., c. 5, it was made necessary to state correctly "the names, estates, degrees, mysteries, and places of residence of defendants in all criminal proceedings." Under this rule of criminal pleading, and the similar rule which obtained in civil practice, serious consequences arose from misnomers. Pleas in abatement were sustained to indictments and declarations, and delay and difficulty of course ensued. In criminal cases, therefore, where it was uncertain by which of two or more names the defendant should be designated, it became usual to plead all, connected by alias dictus. Then, if the defendant pleaded misnomer, "the prosecutor may reply that the defendant is known as well by one name as the other," and the defendant was not allowed to interpose a plea that he was not known by the alias name. (Chitty's Criminal Law, *203, *446; Bishop's Criminal Procedure, sec. 681.)
Under the reformed procedure of our code no plea of abatement lies in case of misnomer and no new indictment becomes necessary for such irregularity. Upon arraignment a defendant is called upon to give his true name, or be proceeded against by the name charged in the indictment. If he answers to another name, that name is entered in the minutes, and the subsequent proceedings are had against him under it. (Pen. Code, sec. 989.) And if at any time his true name is discovered, it is used in all future steps. (Pen. Code, sec. 953.)
Our system, therefore, renders unnecessary in most instances the use of the alias dictus, and there can be no manner of doubt but that this formula, useful and proper in its day, may now be made an engine of oppression to a defendant.
At common law the jury was composed of the litigants' neighbors and friends. The individual selection was made of men who knew the parties and, so far as possible, of men who knew of the facts in dispute. In criminal matters, also, jurors were drawn from the vicinage in order that the defendant, tried by his neighbors, might have the advantage of a good reputation, if he had earned one, and the crown, upon the other hand, might be aided by the jurors' knowledge that he was a bad man, if such were the fact.
But under our system, where in practice, at least, it is sought to obtain a jury knowing as little as may be of the offense and the alleged offender, it needs no reasoning to show that if an indictment be read to such a jury charging with the commission of a crime John Doe, alias Slippery Jack, alias Ticket-of-leave Bill, etc., etc., the defendant at once is prejudiced in their minds, and if such an indictment were so framed without reason, we should not hesitate to declare that its reading would prevent the defendant from obtaining the fair and impartial trial to which the law entitles him.
But such is not this case. While for most purposes the need and use of the charging alias are done away with, it is still proper in some instances -- an illustration of one of which is offered by this indictment. The indictment charged the defendant with conviction of prior offenses -- eight in number. The convictions in these cases were against this defendant, but under the different names charged. For the purpose of identifying him as the person who had suffered those convictions, the use of the alias was not only permissible, but proper. The indictment upon its face showed the reason, and the fact that the part of it containing the averments of prior convictions was not read to the jury because the defendant admitted them did not, under the circumstances, make it error to read the pseudonyms. It was the duty of the clerk to read all the indictment excepting the portion withdrawn as an issue by the defendant's admission.
The judgment and order are affirmed.