PEOPLE v. BEMIS

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District Court of Appeal, Second District, Division 2, California.

PEOPLE v. BEMIS et al.*

Cr. 4205.

Decided: May 19, 1948

Robert H. Green, of Los Angeles, for appellant. Fred N. Howser, Atty. Gen., and Howard S. Goldin, Deputy Atty. Gen., for respondent.

From a judgment of guilty of burglary in the second degree after trial by jury, defendant appeals. There is also an appeal from an order denying his motion for a new trial.

Facts

The evidence being viewed in the light most favorable to the people (respondent) and pursuant to the rules set forth in People v. Pianezzi, 42 Cal.App.2d 265, 269, 108 P.2d 732, the evidence discloses that during the month of June, 1947, defendant broke into a coffee shop located at 754 South Union Street, Los Angeles, which was owned by Mrs. Eleanor Beck, and took from the cafe $125.00 in cash, a quantity of Old Taylor liquor and some keys.

Questions Presented for Determination

1. Pertaining to the evidence

(i) Was there substantial evidence to support the implied findings of fact of the jury upon which the judgment was predicated?

This question must be answered in the affirmative and is governed by this rule of law:

Proof of the corpus delicti plus proof of the confession of a defendant is sufficient evidence to sustain a conviction of burglary. (People v. Meyers, 7 Cal.App.2d 351, 354, 46 P.2d 282.) In the instant case defendant does not question the sufficiency of the evidence to establish the corpus delicti. This being conceded the evidence of defendant's confession to Officers Eggenweiler and Hooper that he had broken into the cafe and taken therefrom money, cigarettes, whiskey and keys, was sufficient evidence to sustain each and every implied finding of fact upon which the judgment was predicated.

(ii) Did the trial court err in permitting witnesses to answer questions asked to which no objection was interposed, which answers included hearsay evidence?

This question will not be considered for the reason that by failing to object to the introduction of evidence in the trial court a defendant waives any objection thereto. An objection to the introduction of evidence may not be made for the first time on appeal. (People v. Duran, 57 Cal.App.2d 363, 370, 134 P.2d 305; Hurd v. Walker, 9 Cal.App.2d 525, 527, 50 P.2d 1074; 10 Cal.Jur. (1923) Evidence, p. 824, sec. 111. See also People v. Conterno, 51 Cal.App.2d 167, 169, 124 P.2d 610.)

In the instant case defendant did not object to any of the questions asked, nor did he make a motion to strike out the answers. Hence under the rule above stated he has waived his right to urge in this court that it was error to admit such evidence.

(iii) Did the trial court commit prejudicial error in permitting the following answer of Officer Hooper to remain in the record?

‘A. * * * We had not seen a copy of the crime report before Bemis [an alleged accomplice of defendant] had stated that they had burglarized this cafe on Union and that the defendant Hudson had been with him and helped him on it. All that we knew at that time was that there had been money taken. We had the bag that was found in the personal effects of Bemis——’

Appellant's counsel made the following motion relative to the foregoing answer:

‘Mr. Harvey: I move to strike the statement ‘We had the bag which was found in the personal effects of Bemis' as hearsay.’

This motion the court granted. Since the trial court ruled in defendant's favor on the only motion or objection he made relative to the foregoing answer, the balance of the answer was properly permitted to stand in the record.

(iv) Did the trial court commit prejudicial error in admitting the testimony of Officer Eggenweiler wherein he related a conversation he had with defendant in which defendant denied participation in the robbery of another cafe, and also admittled robbing the cafe upon which the present conviction is predicated?

The admissibility of such testimony may not be here urged as error for the reasons: (a) Defendant failed to object thereto, and (b) the charge relative to the robbing of another care was dismissed as to defendaut, and the balance of the testimony constituted an admission of defendant against his interest which was properly received in evidence. (People v. Simmons, 28 Cal.2d 699, 712, 172 P.2d 18; People v. Spencer, 78 Cal.App.2d 652, 655, 178 P.2d 520.)

2. Pertaining to the alleged misconduct of the district attorney

(i) Was it prejudicial error for the district attorney in his argument to the jury to state:

‘Bemis [an alleged accomplice of defendant] wanted to break the window and Hudson didn't want to do that.’

This question will not be considered by us for the reason that defendant did not lay a proper foundation in the trial court for review of such question here. The rule is settled that if the alleged harmful misconduct of the district attorney could have been obviated by appropriate instructions of the trial court, a defendant may not predicate error in this court thereon in the absence of (a) assignment of such alleged misconduct as error, and (b) a request to the trial court to instruct the jury to disregard it. (People v. Ramirez, 21 Cal.App.2d 466, 468, 69 P.2d 913; People v. Krug, 10 Cal.App.2d 172, 177 et seq., 51 P.2d 445 et seq.)

Defendant neither objected to the alleged misconduct nor did he request the trial court to instruct the jury to disregard it, although the harmful effect thereof, if any, would have been obviated by an appropriate instruction. Hence the foregoing rule is applicable.

3. Pertaining to the Instructions

(i) Did the trial court commit prejudicial error in failing, on its own motion, to instruct the jury:

(a) As to the manner in which they should consider the testimony of an accomplice?

(b) That evidence of an admission of a defendant should be viewed with caution?

(c) On the law relative to ‘alibi’?

(d) On the distinction between a voluntary and involuntary confession?

This question must be answered in the negative for the reasons that:

(a) In the present case there was no testimony of an accomplice or of an alleged accomplice. Therefore no instruction was necessary on the subject. The cases of People v. Warren, 16 Cal.2d 103, 107, 104 P.2d 1024, and People v. Dobkin, 74 Cal.App.2d 269, 271, 168 P.2d 729, relied on by defendant, are here inapplicable for in each of the cases cited a witness who was an accomplice testified. As heretofore stated, in the instant case an accomplice did not testify. Likewise the case of People v. Putnam, 20 Cal.2d 885, 890, 129 P.2d 367, presented by defendant is imapplicable. Such case had nothing to do with the testimony of an accomplice but was a sex case involving the question of the necessity of giving a cautionary instruction pertaining to the testimony of the prosecuting witness.

(b) Error cannot be predicated upon the failure of the trial court to give a cautionary instruction pertaining to an admission or confession of a defendant in the absence of a request for such an instruction in the trial court. (People v. Fowler, 178 Cal. 657, 663, 174 P. 892. See also cases cited in 7 New California Digest, McKinney (1945), Criminal Law, p. 440, sec. 817.) In the present case defendant did not request a cautionary instruction upon this subject. Therefore he has waived the right to urge that it was error for the trial court not to give such an instruction. It is to be noted that in People v. Koenig, 29 Cal.2d 87, 94, 173 P.2d 1, the failure to give a cautionary instruction such as the one here involved, when not requested in the trial court, was held not to constitute prejudicial error.

(c) It is not reversible error for the trial court to fail to give an instruction upon the subject of ‘alibi’ on its own motion in the absence of any request therefor. (People v. Whitson, 25 Cal.2d 593, 603, 154 P.2d 867. See also cases cited in 7 New California Digest, McKinney (1945) Criminal Law, p. 416, sec. 780.) In the present case defendant failed to request an instruction on the subject of ‘alibi’.

(d) It is not prejudicial error for the trial court to fail to give on its own motion an instruction upon the distinction between a voluntary and involuntary confession. (People v. Scofield, 203 Cal. 703, 709, 265 P. 914.) Defendant did not request such an instruction in the present case, hence it was not error for the trial court not to give one on the subject.

Conclusion

In view of the fact that defendant has failed to direct our attention to any prejudicial error occurring in the trial court, the judgment and order are and each is affirmed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.