Opinion
Crim. No. 280.
January 18, 1915.
APPEAL from a judgment of the Superior Court of San Joaquin County and from an order denying a new trial. J. A. Plummer, Judge.
The facts are stated in the opinion of the court.
John R. Cronin, and C. W. Gillespie, for Appellant.
U.S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.
Appellant was convicted of grand larceny for having stolen a sorrel mare belonging to Charles and Alice Dreyer. There is no merit in the claim of the insufficiency of the evidence to support the verdict. The possession of the stolen property, a few days after the theft, by defendant and one Allen Dodge, who were jointly charged with the crime, the flight of the accused, they having been arrested one hundred and fifty miles from the scene of the offense, their presence in the immediate neighborhood at or near the time the animal was stolen, their abandonment, near the place from which said sorrel mare had been taken, of an emaciated and exhausted horse which they had been driving, furnish abundant inculpatory circumstances to warrant the conclusion of the jury. It may be added that the conviction of the guilt of defendant is greatly strengthened by the contradictory and unreasonable explanation made by himself and his associate in the crime of their possession of the mare and of their peregrinations through the country. Indeed, one can hardly read the entire record without an abiding conviction of the guilt of defendant, and any other verdict would have resulted in a miscarriage of justice.
Some contention is made that the district attorney was guilty of misconduct in his address to the jury. The objection is hardly specific enough to merit attention, but we have examined the record of his remarks and find nothing outside of the legitimate range of argument or to which exception could justly be taken.
Appellant complains that the sheriff refused to conduct him to certain parts of the state that he might interview parties whose names he did not know, but by whom he expected to prove an alibi. The law confers upon a defendant no right to make such demand. It is, perhaps, needless to add that such practice, if permitted, would be likely to lead to great abuse without any compensating benefit. It would encourage simulated defenses, entail grievous trouble and expense and afford additional opportunities for a defendant to escape from the custody of the officer. The law is ample, in this matter, to protect the interests of one charged with a crime. Defendant could have obtained a subpoena for his witnesses, and he should have been able so to identify them that their attendance could have been secured.
The only question about which there can be any serious controversy grows out of the district attorney's effort to lay the foundation for the impeachment of appellant and his codefendant. It seems that after their arrest they were questioned in the county jail by the district attorney in the presence of the sheriff and a stenographer and by the last named the whole proceeding was taken down in shorthand and afterward transcribed. On cross-examination, at the trial, the district attorney, reading from this transcript, interrogated the witness as to certain questions and answers therein appearing. Objection was made upon the ground that the writing should be shown to the witness before he could be required to answer This position was taken by reason of section 2052 of the Code of Civil Procedure, providing: "A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony; but before this can be done the statements must be related to him, with the circumstances of times, places and persons present, and he must be asked whether he made such statements and, if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them." But the attorney-general contends in effect that the last clause of this section confines it to "written statements" of the witness. "If the statements (of the witness) be in writing," in other words, means: "If the statements have been made in writing." In such case it is highly proper that they should be shown the witness. But there would seem to be no reason for requiring the writing to be exhibited to the witness where he has never had anything to do with the execution of it or even has not seen it before. The inspection by the witness of a typewritten transcript, made by a stranger to him, and which he had never seen before, could not assist the witness in his recollection of oral statements which he may have made. At least, it would afford him no greater aid than to have them fully read to him. And there is no contention that the attention of the witness was not directed to all the circumstances and declarations that had any bearing whatever upon the alleged inconsistent statements. But it is not necessary to decide this question, as there is nothing to indicate that the district attorney did not correctly read said transcript or that he refused defendant's counsel an opportunity to inspect it or that the right of cross-examination in reference to it was at all abridged, or that, indeed, the ruling of the court, if technically erroneous, resulted in any prejudice to appellant.
We think he was justly convicted and the judgment and order denying his motion for a new trial are affirmed.
Chipman, P. J., and Hart, J., concurred.