139 Cal. 719, Crim. 928, People v. Morton

• Judge: JUDGES: In Bank. Haynes, C. Smith, C., concurred. Van Dyke, J. Lorigan, J., Beatty, C. J., McFarland, J., Henshaw, J.
• Citation: 139 Cal. 719,73 P. 609
• Date: 14 August 1903
• Docket Number: Crim. 928
• Parties: THE PEOPLE, Respondent, v. ED MORTON, Appellant
• Court: California Supreme Court

Page 719

139 Cal. 719

73 P. 609

THE PEOPLE, Respondent,

v.

ED MORTON, Appellant

Crim. No. 928

Supreme Court of California

August 14, 1903

APPEAL from a judgment of the Superior Court of Monterey County and from an order denying a new trial. N. A. Dorn, Judge.

COUNSEL:

Fred A. Treat, for Appellant.

U. S. Webb, Attorney-General, C. N. Post, Assistant Attorney-General, and Charles Jones, for Respondent.

JUDGES: In Bank. Haynes, C. Smith, C., concurred. Van Dyke, J. Lorigan, J., Beatty, C. J., McFarland, J., Henshaw, J.

OPINION

HAYNES, Judge

The appellant and one Robert Stokes were jointly indicted for the crime of robbery from the person of one William Hickling. Separate trials were demanded, and appellant, Morton, was put upon trial, was found guilty and sentenced to imprisonment in the state's prison for the term of ten years, and appeals from the judgment and from an order denying his motion for a new trial.

Page 720

During the trial, and before the prosecution rested, upon motion of the district attorney, the prosecution was dismissed as to defendant Stokes, who was thereupon called and sworn as a witness for the prosecution, and testified circumstantially that he and Morton together committed the robbery, taking from Hickling, by force, a silver watch and chain and about six or seven dollars in money, and that he kept the watch, and Morton the chain and money.

Appellant contends that the testimony of Stokes, a confessed accomplice, was not corroborated as required by section 1111 of the Penal Code; that, aside from the testimony of the accomplice, "there was no evidence which, in itself and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense"; and this contention must be sustained. Hickling, the prosecuting witness, testified that he had never, to his knowledge, seen Ed Morton before the time of the trial; that he knew Stokes, and saw him on the night of December 22, 1902, at the Klondike Saloon; that there were about twelve others there, but he did not remember to have seen Ed Morton; that he did not know how long he was at said saloon; that he was in and out several times; that he might have been there four hours altogether; that he started home about ten or eleven o'clock; that every time he drank he called up every one in the house, and may have spent six or seven dollars; that he was in three or four other saloons; that he left the saloon to get his horse, and when he was about three parts of the way up the block some one came up behind him and caught him round the throat and threw him down on the side; that he felt a grab for his watch; that the bar was broken inside and his pocket turned inside out; that he tried to turn over; that they gave him an extra squeeze and let go and ran; that he turned and saw two men running down Monterey Street toward Sausal Street, and saw them going through a fence toward an alley in the direction of Main Street; that he ran round to intercept them at the alley, but did not see them; that he ran several blocks, and informed Officer Happ and Constable Church of the holdup; that, besides the watch and chain, six or seven dollars were taken; that he had known Stokes more than three years; that Stokes was more or less familiar with him at the Red

Page 721

Front Saloon; that others were there also, but he did not know who they were; that he left the saloon the back way to Monterey Street, where he was robbed, and saw no one until he saw the two men running; that nothing was said while they were robbing him; that he left the saloon between ten and eleven, and that it was a beautiful moonlight night; that he treated four or five times, and did not remember that any one else treated, and that Stokes was in the saloon just before he left. The sheriff testified that defendant Morton told him that he was in said saloon from eight o'clock until twelve, and that Hickling was there. Mr. Happ, the watchman, to whom Hickling complained of the robbery, testified that Hickling informed him of the robbery at about a quarter to eleven that night, and that, after going to Gabilan and Monterey streets, they went to said saloon; that he saw Mr. Church there, and as he (Happ) started to go out he met Morton and Stokes coming into the saloon; that it was then a quarter past eleven; that he did not speak to them; that he did not see either of them treat, but heard Morton call up for the drinks, and that this was half an hour after Hickling informed him of the robbery. Mr. Church, recalled by the people, testified that he was in the saloon and saw Morton; that Berden was there; that Stokes came in and Morton came in after. He further testified that he was in the back room of the saloon about eleven o'clock, and saw Morton, Stokes, and Mr. Happ in there, and that Morton asked him to drink.

Charles Robson, called for the people, testified that he was in the Red Front Saloon, and saw Morton, Stokes, and Berden there, and that Stokes was in there about ten minutes before Morton came in.

This testimony of Happ, Church, and Robson was given by the prosecution for the purpose, we assume, of corroborating the testimony [73 P. 610] of Stokes, the accomplice, that defendant Morton aided in the robbery. Stokes testified that he and Morton did not return to the saloon together; that he went through a break in the fence into a vacant lot, hid the watch in the alley near Barlogio's saloon, and entered the saloon the back way; that Morton went straight down Monterey Street; that he (Stokes) had been in the saloon five or ten minutes before Morton, and that Morton came in the front way.

Page 722

Thus we have the attempt to corroborate the testimony of Stokes that Morton aided in the robbery by proving by Happ that both entered the saloon together by the front way as he was going out, and by Church and Robson, that they did not come in together, but that Stokes entered about ten minutes before Morton, and that Happ, Morton, and Stokes were with witness in the back room. All this evidence was given on behalf of the prosecution, and Church was recalled after Happ testified to meeting Stokes and Morton entering by the front door, for the evident purpose of correcting his error and sustaining the testimony of Stokes that they did not return together. The argument would therefore be, that if they did not return together, the testimony of the accomplice, Stokes, that Morton aided in the robbery, is corroborated by that fact, and if they did return together, he is also corroborated by that fact, and that the truth upon that subject is unimportant and immaterial.

These men, Morton and Stokes, were not alone at any of the saloons. Stokes testified he had known defendant, Morton, about a year and a half, but it does not appear that they were friends or companions. Hickling appears to have done the treating, calling up every one who was in the saloon. He said he did not know Morton, but did know Stokes, and that "there were others there, about twelve others." Hickling further testified that nothing was said while he was being robbed, but Stokes testified that "when Morton grabbed Hickling and held him down, Morton said 'Come on, Stokes'"; and upon cross-examination Stokes further testified that Morton, when he keeled Hickling over and got hold of his chain, said, "God damn you," and that he stood there and watched Morton until he said "Come...