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People v. Kelly

Supreme Court of California,Department Two
Jan 30, 1905
146 Cal. 119 (Cal. 1905)


Crim. No. 1186.

January 30, 1905.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. B.N. Smith, Judge.

The facts are stated in the opinion.

C.L. Shinn, and F.H. Thompson, for Appellant.

U.S. Webb, Attorney-General, and J.C. Daly, Deputy Attorney-General, for Respondent.

The defendant was convicted in the lower court of the crime of robbery, committed by him and two others on one Powers in the city of Los Angeles — the precise place of the crime being on the west side of Olive Street between Ninth and Tenth streets. He appeals from the judgment and from an order denying his motion for a new trial. Numerous points are urged by his counsel as grounds for reversal; and these will be considered in the order in which they occur in the brief. It will be understood that the several rulings complained of were made over the objections and exceptions of the defendant.

1. The point is made and argued at length in appellant's opening brief that the court erred in refusing to set aside the information, but in the reply brief this point is abandoned.

2. It is claimed that the evidence was insufficient to justify the verdict. But Powers, the man who was robbed, testifies explicitly to all the circumstances of the crime, and clearly identifies the defendant as one of its perpetrators. The argument of the counsel goes only to the credibility of his testimony; which was a matter for the jury to consider.

3. It is objected that the court erred in refusing to strike out the testimony of the witness Smith as to the whereabouts of one Ah Hing. Doubtless this testimony was immaterial, but it could not have injured the defendant in any way.

4. The witness Manihon had testified, without objection, that he was the city electrician, and that he knew of the electric lights at the intersection of Ninth and Tenth streets and Olive; and that no report came in from there on the 14th of January, 1902. He then testified that reports were not made unless a light went out. But it was competent, we think, for the prosecution to show the ordinary course of business of the city with regard to its lights and their general or usual condition. (Code Civ. Proc., secs. 1832, 1963, subds. 20, 28, 32. As to the effect of the evidence, that was for the jury to determine.

The same witness testified that he had made a visit to the place of the crime the night before with Detective Steele; who "located the place where he understood the hold-up occurred"; and he then testified as to the condition of the light at that point. We have been unable to find in the record any evidence tending to show that the place referred to was the true place of the crime; and in the absence of such evidence we think the testimony was improperly admitted. But it appears from the testimony of the witness that the place showed him by Steele was about midway between the two lights; from which it may be inferred that it was the darkest point between them (except under the trees), and consequently for the defendant the spot most favorable for observation. For it appears from the testimony of Powers that the place of the crime was in the open space towards the middle of the block between the trees to the north and to the south; and if the place of the crime was elsewhere than at the middle of the block the light would have been better. Under these circumstances the evidence could not have injured the defendant.

5. The same objection was made to the testimony of the witness Noble, who, in company with Steele, Powers, and others, went to the place of the crime and made certain measurements from the point shown by Powers as the place of the crime. But here Powers himself had testified that he had pointed out to Noble, in company with other persons named, the place of the crime, and the evidence was therefore unobjectionable.

6. The witness Myrtle, with defendant and Case, were originally parties to the information in this case, but as to Myrtle and Case, upon their pleading guilty to a charge of robbery in the case referred to as the Klokke case, the information was dismissed. Both were called as witnesses for the defendant, and Myrtle was asked as to five different felonies prior to the Klokke case of which he has been convicted, and which he admitted. This testimony we think was admissible. By section 2051 of the Code of Civil Procedure it is expressly provided, that "it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a felony"; which means that as many felonies as he has been convicted of may thus be shown. (Code Civ. Proc., sec. 17.)

7. Similar questions were asked of the defendant Kelly; and the same observations will apply as to the case of Myrtle.

8. Another objection urged is, that the district attorney in his argument to the jury dwelt with much emphasis upon previous convictions of the witnesses Myrtle and Case and of the defendant. This was objected to by defendant's counsel, but we see nothing reprehensible in what was said. Nor indeed do we find any ruling by the court, except in the observation that the former convictions were admissible only in attacking the credibility of the witness; which seems to have been all that the defendant could reasonably have asked for, and to which, at least, he took no exception.

9. The witness Case was asked whether he did not tell Officer Kelly or some one in his presence that he and Kelly, the defendant, came down to Los Angeles together from Alameda County. And it is claimed that the question should not have been allowed. But as the question was answered in the negative, the defendant was in no way prejudiced.

10. Defendant also claims that the court erred in refusing to permit him to prove that he, the defendant, was booked at the police station by the name of Badger, but this evidence was clearly inadmissible.

11. Another objection is to the testimony of Mrs. Lightfoot, keeper of the boarding-house at which Myrtle, Case, and Kelly put up prior to the commission of the crime; who testified that Case and the defendant registered under the names of Russel and Truan. This evidence, we think, was clearly admissible.

12. The witness Steele testified to a conversation with the defendant in which, among other things, the latter said that on the night of the 14th he slept in a box-car down by the bridge; and it is objected that the evidence should not have been admitted, both because it was immaterial and because it was not shown to have been made without inducement of hope or fear from the witness. But the evidence we think was material, and the statement of the defendant was not a confession of guilt, and therefore did not require proof that it was voluntary. (People v. Hickman, 113 Cal. 86.)

13. One of the instructions of the court objected to is the following: "The jury being convinced that the witness has stated what is untrue, not as the result of a mistake or inadvertence, but willfully and with the design to deceive, must treat all of his testimony with distrust and suspicion, and reject all unless they shall be convinced, notwithstanding the base character of the witness, that he had in other particulars sworn to the truth." But the effect of his instruction is simply that the jury must reject the testimony of the witness referred to unless they shall be convinced of its truth; which is to leave the credibility of the witness to the jury.

14. Other instructions are objected to as "giving undue prominence by repetition to the impeaching instructions" found in the record, but we think the instructions are unobjectionable in this or any other particular.

15. In another part of the charge the jury is instructed to find the defendant guilty if they should believe from the evidence certain facts hypothetically stated; which included all the facts constituting the crime of robbery except that the property taken from the party robbed was his property. But there was no dispute as to the ownership of property, which was proved to be that of Powers, the party robbed, and hence the jury could not have been misled by the instructions.

We advise that the judgment and order appealed from be affirmed.

Gray, C., and Harrison, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

McFarland, J., Lorigan, J., Henshaw, J.

Summaries of

People v. Kelly

Supreme Court of California,Department Two
Jan 30, 1905
146 Cal. 119 (Cal. 1905)
Case details for

People v. Kelly

Case Details

Full title:THE PEOPLE, Respondent, v. WILLIAM KELLY, Appellant

Court:Supreme Court of California,Department Two

Date published: Jan 30, 1905


146 Cal. 119 (Cal. 1905)
79 P. 846

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