People v. Ahern
| Decision Date | 21 October 1952 |
| Docket Number | Cr. 2822 |
| Citation | 249 P.2d 63,113 Cal.App.2d 746 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE v. AHERN. |
Thomas E. Feeney, William S. Sparks, San Francisco, for appellant.
Edmund G. Brown, Atty. Gen. of California, Clarence A. Linn, Asst. Atty. Gen., Wallace G. Colthurst, Deputy Atty. Gen., John T. Rudden, Jr., Asst. Dist. Atty., of San Francisco, for respondent.
Defendant has appealed from the judgment entered upon his conviction of violating section 11500 of the Health and Safety Code, furnishing a marijuana cigarette to one Patricia McGuire, a minor.
The principal issues are (1) asserted error in the refusal of certain instructions requested by the defendant, and (2) asserted error in permitting an amendment of the information to add a count charging commission of the offense for which the defendant now stands convicted.
(1) The defendant requested and the court refused the following cautionary instructions concerning accomplices and their testimony: 'You are instructed that an accomplice is one who has been concerned in the commission of a crime, whether he or she has directly committed the act or aided and abetted in its commission, and is liable to prosecution for the identical offense charged against the defendant,' and 'You are further instructed that, as a matter of law, it is your duty as jurors to view the testimony of an accomplice with distrust.'
Proper instructions on this subject were necessary in view of testimony of the prosecution witness, Patricia McGuire, tending to prove that one of the other witnesses against defendant aided and abetted him in the commission of the alleged offense. Patricia testified that Darlene Healy was with defendant; that Patricia went up to defendant and asked him for a 'joint' (meaning a marijuana cigarette); he said 'No'; then she started begging him, saying 'please,' and then 'Darlene says, 'Go ahead,' so he says, 'O.K." and gave her a marijuana cigarette. Patricia then lighted it, handed it to Darlene who smoked it some and in turn handed it to the defendant who took a couple of puffs and returned it to Patricia who finished it. Twenty to thirty minutes later the police raided the place. They found seven marijuana cigarettes on Darlene. She testified that she had smoked marijuana about 30 or 40 times, and that in the presence of defendant and Patricia she smoked part of a marijuana cigarette which defendant gave to Patricia that night; that Patricia asked defendant for a cigarette and he said 'No,' but when Patricia asked a second time, he said 'All right'; denied that she, Darlene, said anything, denied that she told defendant to give Patricia one; and said that she knew the defendant and was engaged to marry him.
Here we have evidence tending to prove that Darlene, one of the witnesses for the state, was 'concerned in the commission' of the crime, and 'aided and abetted in its commission' as those terms are used, in defining 'principals in any crime', in section 31 of the Penal Code. If one of the principals, she would be subject to prosecution for the offense with which defendant was charged. That would make her an accomplice as defined in the concluding sentence of section 1111 of the Penal Code. See People v. Shaw, 17 Cal.2d 778, 799-800, 112 P.2d 241; People v. Wallin, 32 Cal.2d 803, 806-807, 197 P.2d 734; People v. Wilson, 25 Cal.2d 341, 346, 153 P.2d 720; and People v. Albrexstondare, 71 Cal.App. 339, 342-345, 235 P.2d 87. The jury are 'to be instructed by the court on all proper occasions * * * That the testimony of an accomplice ought to be viewed with distrust * * *.' Code of Civ.Proc. § 2061(4). Such 'instructions are necessary in a proper case and the failure so to instruct may be reversible error.' People v. Dail, 22 Cal.2d 642, 656, 140 P.2d 828, 836. Here there was a disputed question of fact whether Darlene was an accomplice. Accordingly, the requested instructions under discussion properly left that question to the determination of the jury. People v. Griffin, 98 Cal.App.2d 1, 22, 219 P.2d 519. The second of the two requested instructions ('as a matter of law, it is your duty * * * to view * * * with distrust') is more emphatic than the statute calls for ('ought to be viewed with distrust'). However, in a criminal case, it is the duty of the court of its own motion, without any request by the defendant, to instruct the jury with respect to accomplices and their testimony. People v. Crain, 102 Cal.App.2d 566, 582, 228 P.2d 307, and cases cited.
Defendant took the witness stand and denied having taken any part in the alleged offense. We have examined the record and can not say with assurance that the jury would have given the same verdict had proper cautionary instructions concerning testimony of an accomplice been given. We conclude that the error was prejudicial and that the judgment should be reversed.
(2) The assertion of error in permitting amendment of the information is an objection which defendant is precluded from making upon this appeal. The complaint before the magistrate charged a violation of section 11500 of the Health and Safety Code, furnishing a marijuana cigarette to one Nancy Inocencio. During the preliminary examination evidence was given also of the furnishing of a marijuana cigarette to Patricia McGuire. The written order of the magistrate bound the defendant over to the...
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