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PEOPLE v. LIMA.
The defendant was convicted by a jury on three counts of an indictment charging him, under Section 496 of the Penal Code, with buying different quantities of olives on separate specified dates for his own gain, knowing that they had been stolen. A demurrer to the indictment was overruled. A motion for new trial was denied. From the judgment of conviction which was rendered, and from the order denying the motion for new trial, the defendant has appealed.
The appellant contends as grounds for reversal that: (1) The information fails to state a public offense chiefly because the names of the owners of the stolen olives are not mentioned, (2) the list of jurors for Butte County was selected by the Supervisors contrary to the manner provided by Section 206 of the Code of Civil Procedure, (3) the verdicts and judgment are not supported by the evidence, (4) the admissions of the persons who stole the olives are not corroborated by other circumstances as required by Section 1111 of the Penal Code, (5) the court erred in failing to give a cautionary instruction regarding the testimony of the confessed thieves, (6) the court erred in giving and refusing certain other instructions, and (7) the prosecuting officer was guilty of prejudicial misconduct in his statement to the jury, which deprived the defendant of a fair and impartial trial.
The defendant operated a small olive crushing plant in Butte County where he purchased olives from which he produced olive oil for marketing. He bought small quantities of olives from several boys, some of whom were under eighteen years of age. There is some evidence indicating that he paid for those olives slightly less than market value. It also appears he failed to enter in his account books the names of the vendors or the other information of such transactions required by the Agricultural Code, St.1933, p. 60, as amended. Numerous larcenies of olives in that vicinity led to an investigation and the apprehending of several boys. Two young men, Earl Larkin and William Amos, who were companions living in that neighborhood, sold to the defendant on different occasions in January, February and March of 1943, small quantities of olives. Neither of the young men owned or operated an olive orchard. Amos, who had been working in January, 1943, in the orchard belonging to Delbert D'Amico, was seen in company with his companion hauling olives in a Ford automobile from that orchard to the defendant's plant, where they sold them for five cents per pound. The young men were followed to that plant by a neighbor and charged with stealing the olives. One of them then admitted the theft. Their acknowledgment led to the indictment of the defendant for receiving stolen property. Both Larkin and Amos took the witness stand and admitted the larcenies, charging the defendant with knowledge of their thefts. There is a conflict of evidence in that regard, but the testimony of the boys is corroborated to some extent.
The record contains substantial proof of the guilt of the defendant as charged in the information. It is true that the mere possession of stolen property is not sufficient upon which to convict one of a violation of Section 496 of the Penal Code. The burden is on the prosecution to affirmatively prove that the defendant knew that the property which he purchased was stolen, unless it is bought from a minor under the age of eighteen years who does not himself maintain a fixed place of business or whose employer has no such regular place of business, in which event there is a presumption that the purchaser knows the property was stolen. Sec. 496, Penal Code. Guilty knowledge of a theft, however, may be established by proof of circumstances from which it may be reasonably inferred, such as concealing the property, purchasing it for an inadequate price, or failing to keep a record of the transaction as required by law. People v. Clausen, 120 Cal. 381, 52 P. 658; People v. Jacobs, 73 Cal.App. 334, 238 P. 770; People v. Taylor, 4 Cal.App.2d 214, 40 P.2d 870; People v. Silvas, 34 Cal.App. 638, 167 P. 1155; 22 Cal.Jur. 560, § 7.
In the present case there is adequate evidence to support the verdicts and judgment of conviction, which are necessarily based upon an implied finding that the defendant knew that the olives had been stolen. In addition to the admissions of Earl Larkin and William Amos that they stole the olives mentioned in the information and that the defendant knew they had stolen them, it appears that the defendant also bought stolen olives about the same time in 1943, from four other named boys under the age of eighteen years, for five cents per pound; that he paid Larkin and Amos only five cents per pound for the olives which he purchased from them, and that he failed to give them “weighmaster's certificates”, or to enter in his account books the names of the sellers, the addresses, weights of the olives or other information of the transactions required by the Agricultural Code. Mr. William Slawson, an investigator for the Bureau of Market Enforcement of the Department of Agriculture of the State of California, testified that he examined the defendant's books in March, 1943, and found no reference to purchases of olives from either Larkin or Amos conforming to the requirements of the Agricultural Code, or at all. He also testified that the market price of olives in the vicinity of Oroville at that time was from six to seven cents per pound. The purchased olives were immediately converted into oil. These circumstances furnish some evidence indicating that the defendant had knowledge of the fact that the olives in question had been stolen by Larkin and Amos. It has been held that the failure of a purchaser of goods to enter in his account books the names and other circumstances of the transaction as required by statute is some evidence of his guilty knowledge of the fact that the property was stolen, on the theory that such omissions may reasonably infer that he was concealing the evidence of the transaction because he knew it was unlawful. People v. Clausen, supra.
Earl Larkin and William Amos testified that they stole the olives in question from various orchards in that vicinity in January and February, 1943, as they had previously stolen olives and sold them to the defendant. They gave the names of the owners from whose orchards they stole the olives, and they designated the approximate dates and quantities of such sale. Both young men not only said that the defendant knew they had stolen the olives, but they asserted he told them of at least one orchard where they could secure olives. William Amos testified that the defendant told him he could get olives in “Mitchell's orchard” and instructed him how to approach that orchard without being seen. He also said the defendant warned him to “be careful and don't get caught.” Earl Larkin testified that on or about January 17, 1943, he and William Amos stole from the D'Amico orchard about 180 pounds of olives and conveyed them in a borrowed Ford automobile to the defendant's plant and sold them to him for $9; that they also stole olives from the Mitchell orchard, the Superior orchard and from other named orchards in that vicinity, and sold them to the defendant, and that he knew the olives had been stolen. Delbert D'Amico testified that he owned an olive orchard in Palermo from which he had picked and placed in boxes, just prior to January 18, 1943, about 200 or 220 pounds of olives, which he left in the orchard overnight, and which were subsequently stolen. He said that he “Missed them on January 18th.” He also stated that William Amos worked for him two days, on January 15 and 16, 1943. This gave Amos knowledge that the picked olives had been left in the orchard. George Firestine, a neighbor of Mr. D'Amico, testified that he knew both Earl Larkin and William Amos and that “in the fore part of the year 1943” in the evening about “half past five or six o'clock”, he saw those boys in the D'Amico orchard, loading some olives in the back end of the Model A Ford, in sacks; that he immediately went to that orchard and found some empty boxes turned over, from which the olives had evidently been transferred. He said he followed the young men directly to the defendant's plant and charged them with stealing the olives from D'Amico's orchard, and that one of the boys said, “If you want to snitch on us, we got the olives at D'Amico's.” In an interview they later related to the officers the entire story of their larcenies and sales.
The record contains several corroborating circumstances in addition to the admissions and declarations of Larkin and Amos, strongly indicating that they stole the olives involved in this action in the approximate quantities and upon the dates mentioned, from the D'Amico orchard and from other named owners, and that the defendant bought the olives from them knowing that they had been stolen.
The defendant's demurrer to the indictment was properly overruled. The chief contention regarding the alleged insufficiency of the allegations of the indictment is that it fails to name the owners of the stolen olives. We are of the opinion the indictment is not defective on that account, or otherwise. It is couched in three counts, each of which charges the defendant, under Section 496 of the Penal Code with buying a specified quantity of olives on a particular date, from Earl Irvin Larkin and William H. Amos “knowing the same to have been stolen,” and that the defendant “did so receive and buy said personal property for his own gain and to prevent the owner from again possessing said property.” The first count charges the defendant with the unlawful purchase of 165 pounds of olives on January 15, 1943, knowing them to have been stolen by said last mentioned persons. The second count charges him with buying from said individuals 500 pounds of olives on February 1, 1943. The third count charges the buying of 190 pounds of olives from the same named persons on February 6, 1943. Each count alleges that the olives were so unlawfully purchased by the defendant “for his own gain and to prevent the owners from repossessing their said properties.” This was a sufficient description of the stolen property to definitely inform the defendant of the identical olives he was charged with buying “for his own gain”, knowing that they had been stolen. The crime of knowingly receiving stolen goods may be consummated under the language of the statute, whether it is bought by the accused “for his own gain”, or to “prevent the owner from again possessing his property.” Those elements of the offense, with respect to the purpose for which the property is acquired by the defendant, are stated in the alternative. Both are not required. It would have been sufficient to have alleged in the indictment and to have proved either purpose for buying the property. If the defendant knowingly bought specified stolen property for his own gain, he would be guilty under Section 496 of receiving stolen property contrary to that statute, regardless of who owned the olives. The designation of the names of the owners may aid in identifying the property, but if it is otherwise sufficiently identified, it becomes unnecessary to name the owners. The offense charged may involve neither the thief nor the owner of the property. It is obvious that it may be impossible to identify the owners of stolen olives which are taken from several orchards of different owners and mingled for the purpose of sale. A rule of pleading which would absolutely require the naming and identification of the owners of stolen property under such circumstances would defeat the very purpose of the statute.
There is an apparent conflict of authorities in some jurisdictions regarding the necessity of alleging in an information or indictment for knowingly receiving stolen goods the name of the owner of the stolen property. Some of those cases may be reconciled by the difference in the language of the various statutes under consideration. The case of People v. Grahle, 67 Cal.App. 183, 227 P. 227, 228, upon which the respondent in this case relies, is not directly in point for the reason that the owner of the goods was named. In that case the defendant was charged with and convicted of knowingly purchasing a quantity of stolen cigarettes, belonging to the “Pacific Railway Company, a corporation.” The judgment was affirmed. In upholding the sufficiency of the allegations of the information in that case the court said: “All that is required of an information regarding the matter to which attention is directed is that it contain a statement of the acts constituting the offense in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended.”
In commenting with approval on the case of People v. Nunley, 142 Cal. 105, 75 P. 676, involving the larceny of a horse, the court further said in the Grahle case: “The conclusion there reached is that, where the act charged is otherwise identified, an erroneous allegation of ownership or possession of the subject–matter of the larceny is immaterial; from all of which it follows that appellant's contention in this regard cannot be sustained.”
In the last cited cases the names of the owners of the property were really mentioned in the informations, but it was claimed there was a fatal variance in the proof of ownership. Those cases therefore support the respondent on this appeal. In the present case the indictment fails to give the names of the owners of the olives. Those omissions, however, are immaterial since the stolen property was otherwise adequately identified.
In accordance with the weight of authority and sound reason we are convinced that, under the circumstances of this case, it was not necessary to name the owners in the indictment since the stolen property was sufficiently identified by description of the fruit, by a designation of the quantities of olives delivered, and by stating the exact dates of sales thereof. People v. Ribolsi, 89 Cal. 492, 26 P. 1082; Woodruff v. State, 56 Okl.Cr. 409, 41 P.2d 129; Butcher v. State, Okl.Cr.App., 279 P. 973; State v. Sakowski, 191 Mo. 635, 90 S.W. 435, 4 Ann.Cas. 751; Thompson v. United States, 9 Cir., 202 F. 401, 47 L.R.A.,N.S., 206, 212; 14 Cal.Jur. 101, § 76; 45 Am.Jur. 397, sec. 14. In the text last cited, it is said: “An allegation that the accused knew the goods were stolen from a named owner is unnecessary and immaterial, and if made, may be disregarded as surplusage.”
In 14 California Jurisprudence, at page 101, it is said with relation to the necessity of alleging in the information or indictment the name of the owner of property affected in a criminal charge, that: “Ownership may or may not be an essential matter of description according to the offense charged and the circumstances of its commission. The general rule is that ownership must be proved as alleged because it identifies the offense. This is the rule at common law. But under section 956 of the Penal Code, an erroneous allegation as to the person injured is not material, if the offense is described with sufficient certainty in other respects to identify it. This section applies to burglary, larceny, robbery, receiving stolen goods, and other cases. The name of the owner of property affected is not a material part of a crime. It is only required to identify the transaction, so that the defendant by a proper plea, may protect himself against another prosecution for the same offense. And if the property in question is otherwise sufficiently described, and there is no proof that there is other property answering the description, an averment of ownership is surplusage and need not be proved as alleged.” (Italics added)
In the Butcher case, supra, quoting with approval from the case of White v. State, 23 Okl.Cr. 198, 214 P. 202, the court says [279 P. 974]:
“ ‘It is claimed that the amended information is further insufficient, because it did not contain all the essential averments necessary to charge larceny. It has been held that averments necessary to charge larceny are not essential in an information charging the felonious receiving of stolen property, based on section 2113, Comp.Stat. 1921 [21 O.S.1943 § 1713]. In such an information it is not necessary to state the ownership of the property. (Citing numerous authorities.)’
“The White Case effectually disposes of this contention of defendant's counsel. The allegation as to ownership being immaterial, there could be no material variance of proof.” (Italics added.)
And in the case of Wertheimer v. State, 201 Ind. 572, 169 N.E. 40, 43, 68 A.L.R. 178, at page 183, the same principle is announced as follows: “Where, as in this state [of Indiana], the crime of receiving stolen goods is an independent, substantive offense and not merely an accessorial one, it is not necessary to prove that the accused knew from whom the property was stolen, or when or where it was stolen, or who stole it, or the circumstances under which it was stolen. 2 Brill, Cyc. Cr.Law, § 929, 1188–9; Holford v. State, 1827, 2 Blackf. [Ind] 103; Kaufman v. State [1874, 49 Ind. 248], supra. Proof that the accused knew the property was stolen property cannot often be, and need not be, made directly, by absolute and positive evidence, but such knowledge may be proved or inferred from the circumstances.”
The authorities are uniform in holding that the name of the person who stole the goods need not be alleged or proved in a charge of receiving stolen property. People v. Avila, 43 Cal. 196, 199; People v. Clausen, 120 Cal. 381, 52 P. 658; People v. Grahle, 67 Cal.App. 183, 227 P. 227; 45 Am.Jur. 400, sec. 16.
The cases of People v. Myers, 20 Cal. 76, and People v. Ribolsi, 89 Cal. 492, 26 P. 1082, upon which the appellant relies, are not favorable to him upon the issue as to whether it is necessary to allege in the information or indictment the name of the owner of stolen property. The Myers case is not in point. It involved a charge of arson. In the Ribolsi case the Supreme Court held on page 496 of 89 Cal., 26 P. on page 1083, that the information was “entirely sufficient to save all the defendant's legal rights as to a proper statement of the ownership of the property feloniously received and bought.” The appellant in that case contended that his demurrer to the information should have been sustained on the ground that “it does not set forth the names of the persons from whom the goods were received, or the names of those who stole them; that it is not direct and certain as to the ownership of such goods.” That judgment was reversed on account of the giving of an erroneous instruction with respect to the burden of proof. But the Ribolsi case appears to have definitely held that an information charging the crime of receiving stolen goods is not defective for failure to name the owner of the stolen property. We believe the correct rule of pleading in a criminal action for receiving stolen goods is that when the stolen property is described with sufficient particularity to enable the defendant to identify it as the property he is charged with unlawfully buying for his own gain, it is not necessary to name the owner of the stolen property in the information or indictment. In the present case we think the stolen property was sufficiently identified.
The defendant waived the alleged irregularity in selecting and impaneling the jury by failing to challenge the panel or to raise that question at the trial, or on a motion to set aside the verdict and judgment, or upon motion for new trial. The defendant challenges for the first time on this appeal the legality of the selection of trial jurors by the Supervisors pursuant to Sections 204 and 206 of the Code of Civil Procedure. That question is raised by means of affidavits filed. It is claimed that instead of designating jurors in Butte County for the year 1943 from each district “in proportion to the number of inhabitants therein”, the Supervisors selected no names from the remote fourth district. That procedure was followed for the asserted purpose of economizing on gas and rubber tires, pursuant to the Federal war rationing plan. No challenge to the panel was made. No objection to the jury on that account or otherwise was urged at the trial. No motion to quash the verdict or judgment for that reason was presented, and that alleged irregularity was not included in defendant's motion for a new trial. A regular venire of seventy jurors was drawn, summoned and sworn, from which list the jury was regularly impaneled in the usual manner, without objection on the part of the defendant. He accepted the jury without exhausting his peremptory challenges.
It has been held that the provisions of Section 206 of the Code of Civil Procedure are merely directory and that irregularities in the selecting and impaneling of jurors will be deemed to have been waived unless they are objected to at the proper time. A defendant may not accept a jury and remain silent regarding alleged irregularities in its selection or impaneling, speculating on obtaining a favorable verdict, and then for the first time challenge those irregularities on appeal from the judgment. People v. Coffman, 24 Cal. 230, 234; People v. Patterson, 58 Cal.App.2d 837, 138 P.2d 341; People v. Tennant, 32 Cal.App.2d 1, 88 P.2d 937; People v. Crossan, 87 Cal.App. 5, 10, 261 P. 531; People v. Danford, 14 Cal.App. 442, 112 P. 474; 15 Cal.Jur. 385, § 56. In the Coffman case, supra, it is said: “If he [[[[the defendant] omits at the proper time to interpose his objections to any irregularity, he is deemed to have waived them. They cannot be raised for the first time on a motion for a new trial. He will not be permitted to take the chances of a trial before a jury that he knows has not been impaneled in strict conformity to law, and, after an adverse verdict, to move to set it aside on account of an irregularity that he can fairly be deemed to have assented to.”
It was not necessary, under the provisions of Section 1111 of the Penal Code, to corroborate the evidence of Larkin and Amos, the witnesses who testified that they stole the olives in question and sold them to the defendant with knowledge on his part that they had been stolen. The confessed thieves are not deemed to be accomplices of a person who knowingly buys the stolen property for his own gain. Section 1111 of the Penal Code defines an accomplice as one who may be prosecuted for the “identical offense” charged against a defendant. Neither Earl Larkin nor William Amos was guilty under Section 496 of the Penal Code of buying stolen property. They are the thieves who stole the property and they are guilty of larceny and not the crime of buying stolen property for their own gain.
Numerous cases in California and in other jurisdictions hold that one who steals property and sells it to another is not an accessory to the purchaser thereof in an action against the latter for knowingly receiving stolen goods. The vendee may be convicted of receiving stolen property on the uncorroborated testimony of the thief. In re Morton, 179 Cal. 510, 177 P. 453; People v. Burness, 53 Cal.App.2d 214, 127 P.2d 623; People v. Evans, 34 Cal.App. 284, 289, 167 P. 190; People v. Gordon, 41 Cal.App.2d 226, 106 P.2d 208; People v. Williams, 7 Cal.App.2d 600, 46 P.2d 796; 1 Bishop's Crim.Law, 9th ed., 501, § 699; 9 A.L.R. 1397, note; 136 A.L.R. 1088, note.
However, the record in this case contains circumstances corroborating the testimony of Larkin and Amos of both the theft of the olives and defendant's knowledge thereof.
The court did not err in receiving evidence of defendant's purchases in January, 1943, of olives from three other boys under eighteen years of age. The evidence of other violations of Section 496 of the Penal Code was competent as tending to prove defendant's purpose, intent and guilty knowledge of the fact that the olives had been stolen. People v. Stollmack, 18 Cal.App.2d 471, 475, 64 P.2d 162; Winfield v. State, Okl.Cr.App., 280 P. 630; 8 Cal.Jur. 63, § 169; 22 Cal.Jur. 560, § 7. In the Stollmack case, supra, in which the defendant was convicted of receiving stolen property, and in which a hearing was denied by the Supreme Court, it was said with respect to the competency of evidence of other similar offenses [18 Cal.App.2d 471, 64 P.2d 164]: “While the defendant was not charged in the indictment upon which he was convicted with any of the last three mentioned transactions, we hold that, as bearing upon the motive or intent actuating the defendant at the time of the offenses charged against him, the court committed no error in permitting testimony concerning them to go to the jury.”
In the present case, the evidence of other similar offenses committed at about the same time tends to prove that the defendant knowingly purchased stolen olives, and that he followed a uniform system of attempting to conceal his violations of the statute by failing to furnish the sellers thereof “weighmaster's certificates”, and by omitting from his account books all reference to the names and transactions contrary to the requirements of the Agricultural Code. People v. Robinson, 107 Cal.App. 211, 224, 290 P. 470; People v. Tibbitts, 35 Cal.App.2d 669, 674, 96 P.2d 812; People v. De Vaughn, 136 Cal.App. 746, 29 P.2d 914; 8 Cal.Jur. 69, § 173.
It does not constitute reversible error that the court may have omitted to repeat to the jury on two occasions before the court adjourned the admonition required by Section 1122 of the Penal Code. It appears that the court fully and properly admonished the jury pursuant to that statute at the first adjournment after the jury was impaneled. The trial lasted several days. The clerk's minutes of the trial show that the court called the attention of the jury to the former admonition at every recess or adjournment throughout the trial, except on two occasions regarding which the minutes are silent. Assuming, however, that the court occasionally omitted to repeat its admonishment or to call it to the attention of the jury, in the absence of a showing of prejudice such omissions do not constitute reversible error. People v. French, 12 Cal.2d 720, 764, 87 P.2d 1014; People v. Pearson, 41 Cal.App.2d 614, 620, 107 P.2d 463; People v. Coyne, 116 Cal. 295, 48 P. 218; People v. Olds, 86 Cal.App. 130, 260 P. 321; People v. McKeehan, 11 Cal.App. 443, 105 P. 273; 8 Cal.Jur. 386, sec. 417. In the French case, supra [12 Cal.2d 720, 87 P.2d 1037], it is said in that regard: “Granting as a fact that the omission to admonish the jury did actually occur on said occasion, * * * in the light of the facts as found by the trial court, a ‘technical error’ and ‘not of that importance to demand a reversal of the judgment and a new trial.’ People v. Coyne, 116 Cal. 295, 297, 48 P. 218, 219. Prejudice will not be presumed from an omission to give the admonition if no injury appears to have resulted from such omission.”
It is a reasonable presumption that a complete and proper admonition given to the jury at the outset of the case will be recalled and adhered to by the jury throughout the trial.
It was not prejudicial error for the court, in the presence of the jury, to have denied, under Section 1118 of the Penal Code, defendant's motion for a directed verdict of acquittal. The motion was made in the absence of the jury. That motion was taken under advisement. When the court next convened, and in the presence of the jury, the court denied that motion in the following language: “There was a motion made, and it is now denied in the presence of the jury.”
We are cited to no authority holding that such a motion shall necessarily be decided out of the presence of the jury. In the case before us, however, the motion was made and argued out of the presence of the jury. There is nothing in the record to indicate that the jurors had any knowledge of the nature of that motion. The court does not state that it was the defendant's motion. For aught that appears in the record, the jury may have thought the prosecution made a motion, the ruling on which was favorable to the defendant. In the absence of a showing of prejudice to the defendant, that ruling may not be held to be reversible error even if we concede it should have been made out of the presence of the jury.
The court did not unduly restrict the cross–examinations of the witnesses Amos and Firestine. Both witnesses were examined at great length by the attorney for defendant. The matters complained of appear to have been immaterial. To the question propounded by defendant's attorney to the last mentioned witness, “What were you doing on the road?” he first replied, “I don't think that is any of your business.” But upon instruction to answer the question, the witness later replied, “I was driving from my place over to my father's place.” To the further demand, by defendant's attorney, for the witness to explain why he first said it was none of the attorney's business, an objection was properly sustained. It is not only the province but the duty of the trial judge to confine the cross–examination within reasonable bounds. The extent to which the cross–examination of a witness may be permitted is within the sound discretion of the court. People v. McReynolds, 31 Cal.App.2d 219, 224, 87 P.2d 734; 27 Cal.Jur. 95, § 75. In the present case the court did not abuse its discretion in that regard.
The prosecuting attorney's opening statement to the jury does not constitute reversible misconduct. It appears to have been a reasonably fair statement of the evidence which he expected to and did substantially prove at the trial. The objections to any alleged improper portions thereof were waived by failure to assign them as prejudicial misconduct. People v. Berryman, 6 Cal.2d 331, 336, 57 P.2d 136. The only portion to which the defendant did object was the statement that “olives were being stolen throughout this vicinity.” That statement was withdrawn, and, at the request of the defendant, the court adequately instructed the jury to disregard it. That admonition cured the unwarranted assertion. People v. Berryman, supra; 8 Cal.Jur. 623, § 603.
The forms of verdicts which were returned in this case are neither uncertain nor indefinite. They adequately conform to the provisions of Section 1151 of the Penal Code. The indictment contains three separate counts charging the defendant with knowingly receiving different quantities of stolen olives on designated dates. Three separate verdicts were returned by the jury. Each of them specifies the particular count to which it refers and definitely declares that “We, the jury * * *, find the defendant guilty as charged in Count No. _ (One, Two or Three) of the Indictment.” That form of verdict has received uniform approval. People v. Mercado, 59 Cal.App. 69, 209 P. 1035; People v. Flohr, 30 Cal.App.2d 576, 581, 86 P.2d 862; People v. Cassella, 58 Cal.App. 547, 209 P. 40; 8 Cal.Jur. 400, § 430.
It is necessary only that the verdicts shall clearly indicate that the jury intended to find the defendant guilty of the identical crimes charged in the indictment. People v. Flohr, supra; People v. Tilley, 135 Cal. 61, 67 P. 42.
The court did not err in failing to give a cautionary instruction applicable to the testimony of the witnesses Larkin and Amos who admitted that they stole the olives in question. As we have previously held, they were not accessories to the crime of receiving stolen goods. It does not appear they were induced to admit their thefts by a promise of immunity or other reward for their testimony. It is ordinarily error for the court to single out particular witnesses in its instructions and to caution the jury with respect to the weight to be given to their testimony. People v. Zirbes, 6 Cal.2d 425, 57 P.2d 1319; People v. Longland, 52 Cal.App. 499, 199 P. 546; People v. Lonnen, 139 Cal. 634, 73 P. 586; People v. Blunkall, 31 Cal.App. 778, 161 P. 997; People v. Kilfoil, 27 Cal.App. 29, 148 P. 812. This case was not tried on the theory that Larkin and Amos were accessories to the crime of receiving stolen goods. No cautionary instruction was offered by the defendant. Ordinarily a defendant may not complain of the failure of the court to give to the jury an instruction on a particular phase of a case in the absence of a proffered instruction on that issue. 16 C.J. 1056, § 2498; 23 C.J.S., Criminal Law, § 1325. It is true that a defendant is entitled to a cautionary instruction on a charge of contributing to the delinquency of a child of immature years on account of the nature and the usual secret circumstances attending that offense. People v. Lucas, 16 Cal.2d 178, 105 P.2d 102, People v. Putnam, 20 Cal.2d 885, 129 P.2d 367. It has also been held that the court should instruct the jury in a proper case on its own motion concerning the law with respect to an accomplice and the necessity of corroborating evidence, as required by Section 1111 of the Penal Code, when that issue is involved and relied upon. People v. Warren, 16 Cal.2d 103, 116, 104 P.2d 1024; People v. Putnam, supra. The defendant, however, was not entitled to a precautionary instruction under the circumstances of this case.
The appellant assigns as prejudicial error the giving of an instruction which reads in part: “While you have the right to take into consideration the interest he [the defendant] may have in the result of this trial, you have also the right, and it is your duty, to consider whether he has been corroborated by other credible evidence.”
Assuming, without so deciding, that the foregoing language may infer that it was necessary to corroborate the evidence of the defendant before his testimony could be given full credence, that instruction would not constitute reversible error under the circumstances of this case. It is true that the testimony of a defendant in a criminal case requires no corroboration if it is believed by the jury. State v. Patterson, 98 Mo. 283, 11 S.W. 728; State v. Sanders, 106 Mo. 188, 17 S.W. 223; 23 C.J.S., Criminal Law, p. 722, § 1182. The preceding portion of the same instruction charged the jury that in considering his testimony “You are to treat him the same as any other witness, and subject him to the same tests and only the same tests, as are legally applied to other witnesses.” The jury was elsewhere instructed that they were the exclusive judges of the weight and credibility to be attributed to all witnesses, and that it was their duty to determine “whether his statements are reasonable or unreasonable and whether they are or are not consistent with other statements made by the witness or with facts established by other evidence or with admitted facts.”
In the present case the defendant may not complain of the challenged instruction for the reason that an examination of the record on appeal together with the original instructions discloses the fact that it was given to the jury at the request of the defendant himself. It is included in a charge headed “Defendant's Instruction No. 1”, typed on office paper upon each page of which there is printed the name and address of one of the attorneys representing the defendant. Moreover, the burden is on the party challenging on appeal an instruction as erroneous and prejudicial to affirmatively show that it was not requested by the appellant. People v. Mesa, 121 Cal.App. 345, 8 P.2d 920; People v. Jan You, 26 Cal.App. 148, 146 P. 63; People v. Casselman, 10 Cal.App. 234, 101 P. 693; People v. Cebulla, 137 Cal. 314, 70 P. 181; 2 Cal.Jur. 870, § 509. Under that rule we are precluded from considering the alleged error in that instruction for the reason that it affirmatively appears it was offered and given to the jury at the appellant's own request.
We find no prejudicial error in the other instructions challenged by the appellant.
The judgment and the order denying a new trial are affirmed.
ADAMS, P. J., and SCHOTTKY, Justice pro tem., concur.
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Docket No: Cr. 1847.
Decided: February 29, 1944
Court: District Court of Appeal, Third District, California.
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