People v. Stepp ( 1947 )

NOURSE, P. J.

Defendant and one other were charged under two informations with two acts of robbery. The codefendant pleaded insanity and at the time of defendant’s trial was confined in the state hospital for the criminal insane. The two informations were consolidated as to the defendant Stepp and he was found guilty under both. This defendant rejected the terms of an order of probation and appealed from the order denying his motion for a new trial and from the judgment.

The codefendant was shown to have held up a drugstore in August, 1946, and another on September 1 of the same year. In both instances he appeared alone in the drugstore using a gun later found in appellant’s possession. In both instances he ran from the store to a waiting automobile which belonged to appellant. In both instances a man was waiting for him in the driver’s seat and drove the car out of the neighborhood. The automobile and the gun used in these holdups were both identified as identical or similar to those found in appellant’s possession.

After the arrest of the two defendants, and while two police inspectors were interrogating them, the codefendant admitted that he had committed both robberies, that appellant was in on both of them, that they had used appellant’s automobile, and that they had divided the loot between them. When appellant was asked if he had anything to say he answered: “I have nothing to say, I remain mute.” No objection was made to this testimony, hence, the only question is whether the evidence as a whole is sufficient to support the verdict.'

The evidence of the conversation is found in the testimony of one of the police inspectors. He gave a full account of the conversation, the accusation made by the codefendant, the inquiry made to appellant as to whether he wanted to answer, and the failure of appellant to make any denial. The latter took the stand and denied the entire conversation. On this conflict the jury found against him.

On the appeal the appellant for the first time argues that the testimony was inadmissible. Cases are cited holding that similar circumstances did not call for a reply and others holding that instructions covering the subject of accusatory statements were improper. All these are beside the point. Section 1870, subdivision 3 of the Code of Civil Procedure authorizes the admission of such testimony, and when it is admitted, without objection, there is no error on the part of the trial court which may be urged on appeal. This rule has been universally accepted and is not now open to argument. The portion of the majority opinion in People v. Simmons, 28 Cal.2d 699 [172 P.2d 18] which relates to the matter of accusatory statements is an interesting discussion of the question of the admissibility of such testimony, but what is controlling here is found in the concurring opinion where it is said: (p. 723) “It is conceded that on the trial defendant’s counsel made no objection to the admission of the statements in evidence and no motion to strike or limit its effect was made. It is the rule that unless objection to it is made at the trial such evidence is beyond attack on appeal and may be considered in support of the judgment. (People v. Lawrence, 143 Cal. 148 [76 P. 893, 68 L.R.A. 193] ; People v. Peterson, 66 Cal.App.2d 420 [152 P.2d 347]; 2 Cal.Jur. § 82, p. 263; 8 Cal.Jur. § 516, p. 500; 4 Cal.Jur. 10-Yr.Supp. (1943 rev.) 909.) ” Directly in point is People v. Peterson, supra, where it is said (p. 424) : “But the testimony under consideration here was introduced without objection and no motion to strike or to limit its effect so as to exclude its application to appellant was made. Even if it be assumed that said statement constituted inadmissible hearsay, it is to be considered on appeal in support of the judgment when no objection or motion to strike or to limit its effect was made in the trial court. (People v. Magusin, 120 Cal.App. 115 [7 P.2d 764] ; People v. Freer, 104 Cal.App. 39 [285 P. 386]; People v. Lorden, 62 Cal.App. 501 [217 P. 117].)”

The evidence offered in support of an alibi was too weak to require comment. It is sufficient to say that the jury did not believe it.

We find no error in the instructions. The jury was properly instructed that the reaction of the accused was the evidence to be considered, and that the accused must have been given a fair opportunity to deny the accusation.

The instruction requiring a finding that the property was taken by means of force or fear fully covered the case made out by the State charging the appellant with having aided and abetted his codefendant in the commission of the robberies.

Judgment and order affirmed.

Goodell, J., concurred.