DocketNumber: Crim. No. 477.
Citation Numbers: 158 P. 1067, 30 Cal. App. 473, 1916 Cal. App. LEXIS 7
Judges: James
Filed Date: 5/17/1916
Status: Precedential
Modified Date: 10/19/2024
Defendant was charged with having set fire to a pile of baled hay which was owned by a corporation. His conviction followed, after which a motion for a new trial was made. The appeal is taken from a judgment of imprisonment, and also from the order denying the motion for a new trial.
The section under which defendant was prosecuted provides in part as follows (Pen. Code, sec.
It is further claimed that there was no sufficient proof of the corpus delicti, except as it was furnished by the words of the accomplice, Warrick. The corpus delicti may always be shown by proof of circumstances. The officer who found the hay burning, and described to the jury the conditions as he discovered them, and gave a description of the character of the pile of hay, together with its situation in an open lot, furnished ample evidence from which the jury could properly conclude that the fire was of incendiary origin. The testimony of this accomplice, together with the express admission of the defendant, furnished abundant proof upon which to base a verdict of guilty. The defendant testified as a witness on his own behalf, and while he denied active participation in the setting of the fire, admitted that he went to the pile of hay with Warrick. He admitted further being present at Andrews' house, but sought to shift the responsibility for the remark as to the grudge against the Chino company from himself to Warrick. A case was so plainly made out against the defendant upon the whole testimony, as we view it, that it would be almost inconceivable that the jury could have decided otherwise upon the proof presented. That consideration will be borne in mind when certain other objections urged by the appellant are considered.
It appears that two trials were had of this defendant: The information in the first case charged that he burned a "stack of hay." At the conclusion of the testimony, it having been shown that the hay burned was a pile of baled hay, the court directed the jury to find a verdict for the defendant on the ground of variance between the charge and the proof. The defendant had asked that the case be dismissed on the same ground. The second information was then filed, upon which this trial was had, wherein the defendant was charged *Page 477
with having burned "a pile of baled hay." To this second charge, in addition to his plea of not guilty, defendant interposed a plea of once in jeopardy and of former acquittal, basing both pleas upon evidence of the acquittal made because of the variance mentioned. The jury in the case was advised by the court that it should find for the people on the plea of once in jeopardy, but no verdict was returned on the plea of former acquittal. Appellant insists here that, not only was the court in error in directing the jury to find for the people on the plea of former jeopardy, but that he was entitled to a verdict on the plea of former acquittal, and that no jurisdiction resided in the court to pronounce judgment until such a verdict had been rendered. It should be remembered that the evidence offered in support of the plea of once in jeopardy and that of former acquittal was the same, to wit, the record of the proceedings had in the first trial. While it is true in general that a plea of once in jeopardy presents a question of fact which the jury has the right to solve, where the evidence is uncontradicted and shows a state of the case such as that disclosed here, the question becomes more particularly one of law upon which the court is authorized to advise the jury directly. (People v. Cummings,
The defendant has complained that the court had no right in the first trial to give a mandatory instruction directing his acquittal, but the sole argument in support of this objection seems to be that the court should have advised but not "directed" such a verdict. We think that the defendant is not in a position to raise this objection, as the action of the court was favorable to him, rather than the contrary. The fact that he was at that time insisting upon his motion *Page 478
to dismiss the case, does not, we think, add any force to the position which he now takes regarding that matter. Cases have been reversed where the appeal was taken by the people from an instruction directing a verdict, but we have yet to find one where the defendant has claimed to have suffered prejudice for like cause. The court under the state of the case at the first trial was altogether justified in refusing to dismiss the charge, and would have been justified in refusing to "advise" the jury to acquit, without it appearing that such acquittal was by reason of the variance between the proof and the charge, which acquittal, under section
The court in instructing the jury stated the definition of the word "malice" as the same is found in subdivision 4 of section 7 of the Penal Code, as follows: "The words 'malice' and 'maliciously' import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." The court gave a further instruction to the jury in which the jury was advised that it was necessary for the prosecution to prove malice, as it was one of the material elements of the offense, and stated: "And in this connection, you are instructed that malice is not presumed, and you cannot presume that any act of the defendant was malicious, but the malice on the part of the defendant must be established by the prosecution as one of the material elements of the offense, and you must be satisfied that the acts of the defendant were malicious to the same extent that you must be satisfied with any other material element of this offense." The appellant insists that the malice mentioned in section
It is further claimed that the court erred in allowing proof to be made of the fact that a number of fires were set by Warrick and the defendant after the pile of baled hay was kindled and on the same night. Conceding that proof of after-committed offenses is not admissible in support of a criminal charge, we feel wholly justified in this case in resolving the error against the defendant for the reason that upon the whole case we think that the conviction was just, and that there has been no miscarriage of justice. The chief points relied upon by the appellant have now been considered. The instructions of the court were quite complete and seem to have fully stated the law applicable to the case.
The judgment and order are affirmed.
Conrey, P. J., and Shaw, J., concurred.
State v. McIntyre , 92 Utah 177 ( 1937 )
State v. Dixson , 80 Mont. 181 ( 1927 )
People v. Gelardi , 77 Cal. App. 2d 467 ( 1946 )
People v. Blue , 161 Cal. App. 2d 1 ( 1958 )
People v. Picaroni , 131 Cal. App. 2d 612 ( 1955 )
People v. Woods , 157 Cal. App. 2d 617 ( 1958 )