People v. Bennett, Cr. 2892

• Decision Date: 14 July 1953
• Docket Number: Cr. 2892
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. BENNETT.

Page 476

259 P.2d 476

119 Cal.App.2d 224

PEOPLE v. BENNETT.

Cr. 2892.

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

July 14, 1953.

Ernest Spagnoli and John W. Bussey, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Charles E. McClung, Deputy Atty. Gen., for respondent.

NOURSE, Presiding Justice.

The defendant was tried to a jury on five indictments charging thirteen separate offenses, and a prior conviction of a felony. He admitted the prior conviction and went to the jury with a general denial of all the other charges. He insisted upon conducting his own defense and refused the offer of the trial court to assign counsel to aid him. After ten days of trial the defendant was found guilty of six of the thirteen offenses charged in the indictment, i. e., burglary, rape, violation of section 288a of the Penal Code, assault with intent to commit rape, and assault with a deadly weapon. He was acquitted on the charge of robbery. The jury disagreed on the fourth and fifth indictments--presumably because of the insufficiency of the identification by the two alleged victims named therein. The appeal is taken from the several judgments and from the orders denying a new trial.

We will consider the grounds of appeal in the order made by appellant. But primarily we should state that there is no contention that the evidence was insufficient to support the several verdicts.

First. There was no error in the consolidation of the five indictments for purposes of trial. The offenses of which defendant was convicted were all of the same pattern and were all committed in the same manner. They were all properly consolidated under section 954, Penal Code. The unrelated charges of robbery were not found and their joinder was not prejudicial. However, defendant made no objection to the consolidation and the point cannot be raised for the first time on appeal. People v. Chessman, 38 Cal.2d 166, 175, 238 P.2d 1001; People v. Van De Wouwer, 91 Cal.App.2d 633, 640, 205 P.2d 693.

Second. That the trial court erred in denying defendant more than ten peremptory challenges since some of the counts included a charge of robbery. The point is not clearly presented. The record discloses that preliminary defendant demanded fifty peremptory challenges--ten for each count in the indictment. This was denied, and properly so. Now he argues that he was entitled to twenty because of the robbery charge. But he exercised only eight challenges on the whole case and announced his satisfaction with the jury as drawn. He may not complain on appeal. People v. Bugg, 79 Cal.App.2d 174, 176, 179 P.2d 346 and cases there cited.

Third. Error is assigned to the admission of testimony of the several victims of the attacks disclosing their identification of the defendant at line-ups of prisoners in the city jail. This is a common complaint which is not here supported by any authority. The argument that the testimony of these witnesses was hearsay falls because no objection was made. But it was admissible to supplement the testimony of the same witnesses identifying the defendant by his facial appearance, his voice, and articles of clothing worn by him. See People v. Slobodion, 31 Cal.2d 555, 559, 560, 191 P.2d 1; and Vol. IV, Wigmore, Evidence, sec. 1130.

Fourth. This is the all too common charge of misconduct on the part of the trial court. The main complaint is the denial of defendant's numerous requests for continuances to enable him to procure witnesses--mainly to prove his defense of alibi. The court had given him four months' delay....