(190 P.) ceased concerning the assault was not prejudi- [ U. S. Webb, Atty. Gen., and John H. Riord cial. where the same facts were abundantly es- an and J. R. Dorsey, Deputy Attys. Gen., for tablished by other evidence, including defend- the People. ant's own confession, so, as the admission of such evidence did not result in a miscarriage of justice, it did not warrant reversal under Const. art. 6, § 42. 10. Criminal law 404(4)-Locks of hair found in automobile driven by murdered man properly admitted. Where defendant engaged deceased's automobile and struck deceased on the head with a hammer, robbed him, and appropriated the car, locks of matted hair, adhering to what appeared to be parts of the human scalp, were properly admitted, where it was testified that they were found in the automobile where defendant had abandoned it, and that they were the same as the color of decedent's hair, without further testimony that they were in the same condition as when taken from the automobile. 11. Criminal law 318-No presumption of change in locks of decedent's hair between time of discovery at scene of and trial. murder There is no presumption that locks of hair taken from an automobile in which deceased was riding at the time the fatal injuries were inflicted on his head with a hammer were changed between the time they were discovered and the trial. 12. Criminal law 404(4)—Admission of locks of decedent's hair not erroneous, as tending to arouse passion. Where defendant engaged deceased's automobile, and then struck him on the head with a hammer, robbed him and took the car, the admission of locks of human hair with pieces of scalp found in the car cannot be deemed erroneous, on the ground that it was calculated to arouse the passion and prejudice of the jury; there being nothing to show that such articles were introduced for an improper pur pose. the defendant was convicted of the crime SHAW, J. Upon a charge by information of murder of the first degree, and thereupon sentence of death was imposed upon him. The appeal is from the judgment of convic tion. In support of his appeal he urges seven grounds. We will consider them in the order in which they are presented. [1] 1. At the time the defendant was brought before the magistrate for the preliminary examination upon the charge it was suggested in his behalf that he was under the age of 18 years at the time the crime was alleged to have been committed. magistrate examined into the matter, and determined that he was less than 16 years The of age at that time. Thereupon he suspended the proceedings and ordered the constable to take the defendant before the juvenile court of the county for its consideration under the Juvenile Court Law. In the superior court, by direction of the court a petition was filed by the probation officer to bring the defendant within the terms of the probation law. Section 3. Thereupon the court took evidence relating to the character of the defendant and the nature of the crime charged against him, and made an order finding that he was under the age of 21 years, but that he was not a fit subject for further consideration under the terms of the Juvenile Court Law, and adjudged that he be remanded to the justice's court in which the charge of murder was pending for further proceedings on said charge, and that the proceedings under the probation act be dismissed. All these proceedings were taken 13. Criminal law 822(1)—Instructions con-under the provisions of the Juvenile Court strued as whole. Law. General Laws, p. 750, Act 1770a, § 6. Instructions, and particularly a single in- Thereafter the magistrate proceeded with the struction, must be construed as a whole. 14. Criminal law 822(4)-Instructions in homicide case as to duty of jury not objectionable when construed as a whole. Instructions in a homicide case that unless the jury did their duty laws might as well be stricken from the statute books cannot be deemed erroneous as a direction that the jury would be neglectful of their duty if defendant was not convicted, in view of the many statements of the rights of defendant, which were a part of the same instruction. In Bank. preliminary examination, the defendant was duly committed, and the information upon which he was tried and convicted was then filed. The claim is now made that under the provisions of the Juvenile Court Law, after the magistrate had determined that the defendant was less than 18 years of age and the matter then came before the superior court for proceedings under that law, the superior court was without power to remand him to the magistrate for further proceedings on the criminal charge. The claim is, in effect, Appeal from Superior Court, Kern County; that a person under 18 years of age cannot Howard A. Peairs, Judge. be prosecuted or punished for the crime of Roy Wolff was convicted of murder in the murder, and that he can be dealt with only as a ward of the juvenile court. first degree, and he appeals. Affirmed. We do not think this proposition is susJackson Mahon and W. W. Laidley, of tained by the law. Section 6 provides that Bakersfield, for appellant. when, upon a charge of crime against a per For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes son, it shall appear to the magistrate that To "This act shall be known as the juvenile court law' and shall apply to any person under It then describes 14 classes of persons who shall be subject to the provisions of the act, if under the age of 21 years. Class 13 includes any person "who violates any law of this state or any ordinance of any town, city, county, or city and county of this state defining crime." Section 4c of the act provides that if, upon the hearing of a petition for proceedings under the Juvenile Court Law as provided in section 3, the court shall determine "that any person alleged to come within the provisions of subdivision 13 of section 1 of this act, is not a fit and proper subject to be dealt with under the provisions of this act, said court may dismiss the petition therein, and direct that said person be prosecuted under the general law." Section 4d provides that no person under the age of 18 years at the time of the commission of a crime shall be prosecuted for the crime until the matter has first been submitted to the juvenile court as in the act provided. These provisions clearly imply that a person under the age of 18 years may nevertheless be prosecuted for a crime, notwithstanding the fact that he has invoked the application of the Juvenile Court Law to his case. The provision of section 6, above quoted, taken in connection with the other provisions, can only mean that upon the hearing of a case which had been under examination before a magistrate upon a charge of crime and has been certified to the juvenile court because of the age of the defendant, if the juvenile court shall conclude that such person "is not a fit subject for further consideration under the act," it may remand him to the magistrate for examination or trial, regardless of the question whether he is over or under 18 years of age. This being the case, the magistrate would have jurisdiction as provided in the part of section 6 which we have quoted, to proceed with the examination and upon finding sufficient cause therefor to commit him upon the charge. [2-4] 2. In certifying the cause to the juvenile court after finding that the defendant was under 18 years of age, the magistrate, it is claimed, failed to attach to the certificate a certified copy of the original deposition or complaint filed before him. Section 6 of the Juvenile Court Act provides that he shall do this. It is contended that this omission deprived the court of jurisdiction. We do not think the requirement was intended to be jurisdictional. The clause requiring such copy to be attached is obviously merely directory in character and effect, the object being to apprise the juvenile court of the nature of the charge. Furthermore, the objection is not properly in the record before us. The defendant should have made it a part of the record, either by a bill of exceptions or by some special order of the court. Section 1246 of the Penal Code enumerates mi (190 P.) transcript on appeal. The certificate of the magistrate and proceedings remanding the defendant to the juvenile court, and by the juvenile court back to the magistrate for further action, are not thereby required or authorized to be made a part thereof. The record does not show that the court made any order requiring the phonographic reporter to include the same in the transcript of his notes. Without such order the phonographic reporter would not be authorized to include these papers in his transcript, and he has not done so. Moreover, there was no foundation upon which the objection can be raised on appeal. This objection would not, at most, constitute a ground of objection, except upon motion in the superior court to set aside the information or in the juvenile court to arrest the proceedings there upon that ground. It does not appear that any such motion was ever made. We do not intend to say that it would, even on such motion, be ground for setting aside the information. As the case stands, the defendant has waived the objection, even if it had any merit. [5] 3. The defendant claims prejudicial error in rulings of the court overruling his challenges for cause to two of the jurors. The challenges were made on the ground of actual bias as defined in subdivision 2 of section 1073 of the Penal Code. Section 1076 provides that under such a challenge a person shall not be disqualified as a juror by reason of having formed or expressed an opinion upon the guilt or innocence of the defendant founded upon public rumor, statements in public journals, or common notoriety, if it appear to the court, upon his examination that he can and will, notwithstanding such opinion, act impartially and fairly upon the matter. Juror Heimforth, upon his examination, testified that he had read the newspaper accounts of the crime, and had therefrom formed an opinion as to the guilt or innocence of the defendant, which it would take evidence to remove. Upon further examination, however, he stated that his opinion was formed entirely upon what he had read in the newspapers, that he had no other knowledge or information about the matter, and that, notwithstanding that opinion, he could, and would, if sworn as a juror, lay it aside, consider the case entirely upon the evidence produced in court, and act impartially and fairly in the case. Juror Blaisdell testified that he knew nothing of the case except what he had read in the newspapers, that he had formed an opinion therefrom which the evidence might remove, but that, notwithstanding the opinion, he could, and would, act fairly and impartially upon the charge against the defendant, and be guided solely by the evidence produced in court in arriving at a verdict. He further stated that he would retain the opinion until he heard the evidence, that after it had once gotten into his mind he could not put it out until something occurred to change it, but that he could go into the trial of the case presuming the defendant innocent, and depend entirely upon the evidence introduced and the instructions of the court in finding a verdict, and would not in any way permit the matter that he had read in the newspapers to influence his decision. The court, upon this testimony, was justified in holding that the jurors were qualified. A juror who has formed a tentative opinion in that manner will usually say that it will require evidence to change the opinion. That fact is not incompatible with ability to disregard such opinion entirely in weighing the evidence and to render a verdict solely upon that evidence. This psychological fact was recognized by the Legislature, and section 1076 was enacted to avoid the necessity of sustaining challenges for actual bias in such cases. Its effect is that this state of mind does not disqualify the juror, if, notwithstanding such mental condition, he can and will act impartially and fairly in the case. [6] 4. During the examination of the jurors the district attorney put the following question: "Well, supposing the court should further instruct you that if you find from the evidence that the killing was done, and that it was done by the defendant in an attempt to perpetrate or in the perpetration and commission of the felonies that I have mentioned, one of which was robbery, that you would have no option in the matter, but that you should find the defendant guilty of murder in the first degree, would you follow that instruction? A. Yes, sir." Questions of somewhat similar purport were put to 11 other jurors who were examined. Defendant claims that these questions were unfair because they did not advise the jury that the guilt must be shown to a moral certainty and beyond all reasonable doubt, and that the many repetitions of similar questions would leave the impression with the jury that the court would instruct them that the killing was done by the defendant in the perpetration of a felony. He assigns the putting of the questions as misconduct on the part of the district attorney. A reading of the entire examination shows that there was no misconduct. The district attorney in his questions to the jurors repeatedly stated that the court would instruct them that they could not convict the defendant of the charge unless they should be satisfied of his guilt beyond a reasonable doubt from the evidence produced before them. The court did so instruct them at considerable length, and they must have clearly understood the rule. The question itself was plainly conditional, and did not assert that the court would so instruct them. The principle embodied in the question, aside from the proposition that the guilt must be proven beyond a reasonable doubt, is but a restatement of the definition of murder contained in the Penal Code. Pen. Code, §§ 187, 189. It is substantially a repetition of the law as laid down in People v. Milton, 145 Cal. 169, 78 Pac. 549, and People v. Witt, 170 Cal. 107, 148 Pac. 928. It was not intended as a complete definition, and we need not say that it may be so considered, but in connection with the other questions put to the jurors we do not think that it constitutes misconduct, or that it could have prejudiced the defendant, especially in view of the fact that the court very fully instructed the jury with regard to the elements of the crime of murder. The question itself merely amounted to an inquiry whether or not the juror would follow the instructions of the court. To this the defendant's attorney objected on the ground that it was not proper redirect examination, and that it was cross-examination of the people's own witness. The objection was overruled. Thereupon the district attorney elicited testimony to the effect that Greer said that he had been hit on the head, referring to the beating. The witness was again asked to examine his previous testimony to refresh his recollection on the subject. To this the defendant repeated the previous objection, and added the objection that the testimony was irrelevant, incompetent, and immaterial. The objection was overruled, and thereupon the witness, after reading his previous testimony, stated that Greer had informed him that he was hit on the head with a hammer, and that his money and automobile were taken away from him. On recross-examination he further testified that Greer told him that he did not know who had hit him. No other objection was made to this testimony, and no motion was made to strike it out. The defendant claims that this was error, and that it was very prejudicial to his case. In view of the testimony on the cross-examination, it cannot be said that it was not within the scope of a fair redirect examination. But the statement of the witness on the cross-examination as to what Greer said was not technically responsive to the question, but was a voluntary statement. This point was not embraced in the objection. The evidence was obviously hearsay and incompetent, however, and the redirect examination should not have been allowed, if the proper objection had been made. But, however this may be, the evidence was not prejudicial. The truth of the statements by Greer to the witness was fully established by other uncontradicted evidence. After his [7-9] 5. The defendant was charged with the murder of one Elmer Greer. The evidence showed that Greer was operating an automobile for hire; that on May 26, 1919, the defendant hired Greer and his automobile for a trip, and that while on the trip the defendant stealthily hit Greer on the head three times with a hammer. Each blow made a round indentation in the skull, forcing the bone into the tissue of the interior of the skull. From these wounds Greer died on May 29, 1919. On the trial one Delbert E. Bellus, on behalf of the prosecution, testified on direct examination that on May 26, 1919, he helped Greer aboard a train running from Maricopa to Bakersfield; that Greer then had wounds on the head; that he bathed Greer's head and face several times during the journey to Bakersfield, and there left him at the station. On cross-examination the witness was asked many questions as to the details of the jour-tary confession to the chief of police at Bakney to Bakersfield and the condition of Greer. The following is a part of the crossexamination: In answer to other questions he said that Greer looked better by the time he got to Bakersfield and "talked better." On redirect examination the district attorney showed the witness a transcript of his testimony at the preliminary examination, to refresh his memory of the conversations with Greer, arrest the defendant made a full and volun ersfield, in which he stated the same facts that were elicited on the redirect examination objected to. They were also clearly proven by other satisfactory evidence circumstantial in nature, but not contradicted. The defendant did not testify in his own behalf and introduced no evidence tending to disprove his guilt. The other evidence of able doubt. It is plain from the entire case the defendant's guilt leaves it in no reasonthat it did not result in a miscarriage of justice, and consequently, under section 41⁄2, article 6, of the Constitution, it would not be sufficient cause for reversal. [10-12] 6. The court admitted in evidence two locks of matted hair adhering to something which appeared to be parts of a human scalp, together with testimony that they were found in Greer's automobile at Livingston Station near Merced, where defendant "Would your memory be any better than it is had abandoned it and had boarded the train and asked: (190 P.) Testimony was given to the effect that this [ "You should also ever keep in mind the imhair was of the same color as the hair of portance to the accused of the result of your Greer. The witness Corbett testified that he deliberations and be just to him, as well as to found the hair in the automobile soon after the people of the state of California. Both the the defendant abandoned it, and that he gave mand, and they do so demand, and expect, that public and the defendant have a right to dethe hair to Officer Pyles. Pyles produced you will carefully and dispassionately weigh the hair, and testified that Corbett had giv- and consider the evidence and the law of the en it to him, that he had known Greer for case and give each your conscientious judga number of years, and that this hair was ment; and that you will reach a verdict that the same color as that of Greer. The locks will be just to both sides, regardless of what of hair were then offered in evidence, and the consequences may be." admitted over the defendant's objection that "no proper foundation had been laid." It is now claimed that it was error to admit this evidence without further evidence showing that its condition was the same at the time of its admission as it was when it was taken from the automobile, and that it was introduced in order to arouse the passion and prejudice of the jury. The defendant made no attempt to show that the hair was The defendant does not claim that the eviin a different condition at the time of its in- dence is not sufficient to support the verdict, troduction in evidence from its condition at and it is therefore unnecessary to consider the time it was found, and it is not claimed the same. We have examined it, however, that its natural color had been changed. and find that it clearly establishes his guilt There is no presumption that these articles of a cold-blooded, mercenary, deliberate, and had been changed in any way for any pur-willful murder. pose, and we find nothing in the record to indicate that the district attorney introduced the evidence for any improper purpose. They were properly admitted. The instructions, and particularly a single instruction, must be considered as a whole. We cannot perceive wherein the court in this instruction in any respect misdirected the jury as to their duty, and we do not think that it could have been understood by the jury as a direction that they would have been neglectful of their duty if the defendant was not convicted. The judgment is affirmed. We concur: ANGELLOTTI, C. J.; WILBUR, J.; LAWLOR, J.; LENNON, J.; OL [13, 14] 7. The court gave the following in- NEY, J. struction: "You are here, gentlemen, for the purpose of trying the issues of fact that are presented by the allegations in the information filed by the district attorney and the defendant's plea thereto. This duty you should perform, uninfluenced by pity for the defendant, or by passion or prejudice on account of the nature of the charge against him. You are to be governed therefore solely by the evidence introduced in this trial and the law as given by the court. The law will not permit jurors to be governed by mere sentiment, conjectures, sympathy, passion, or prejudice. A verdict founded upon sentiments of pity for the accused, or upon public opinion or public feeling, or upon passion or prejudice, or upon conjectures, would be a false verdict. You will not take counsel of them in deliberating upon your verdict. The importance of your duties requires that you consider the right of the people of the state of California to have the laws properly executed, and that it is with you, citizens selected from the county, that finally rests the duty of determining the guilt or innocence of those accused of crime, and unless you do your duty, laws may as well be stricken from statute books." The defendant argues that the last sentence of the instruction, in effect, directed the jury that they should find the defendant guilty, and if they did not do so they would have neglected their duty. As a part of the same instruction and immediately following the above extract, the court said: (182 Cal. 709) WESTERN INDEMNITY CO. v. INDUSTRIAL ACCIDENT COMMISSION et al. (S. F. 8796.) (Supreme Court of California. May 12, 1920.) 1. Insurance 130(7)-Counter offer of general agent upon receipt of application called for acceptance or rejection. Where an employer of labor applied to a local agent of an indemnity company for a renewal of an expiring policy of insurance, covering liability for injury to employés, stating that he wanted the insurance even though the premium might be more than $15, and local agent in the application sent to the general agent inserted the premium as $10 the amount of the premium the preceding year, and the general agent wrote employer that a $15 minimum premium was required, and that employer should advise by return mail if such premium would be satisfactory, there was no contract of insurance until the employer accepted the counter offer of the general agent; there being no meeting of minds. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |