People v. Carswell

• Citation: 51 Cal.2d 602,335 P.2d 99
• Decision Date: 17 February 1959
• Docket Number: Cr. 6347
• Court: California Supreme Court
• Parties: PEOPLE of the State of California, Respondent, v. Frank CARSWELL, Appellant.

Page 99

335 P.2d 99

51 Cal.2d 602

PEOPLE of the State of California, Respondent, v. Frank CARSWELL, Appellant.

Cr. 6347.

Supreme Court of California, In Bank.

Feb. 17, 1959.

Rehearing Denied March 18, 1959.

James M. Dennis, O. A. Goth and Goth & Dennis, Redwood City, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., and Arlo E. Smith, Deputy Atty. Gen., for respondent.

SPENCE, Justice.

Defendant appeals from a judgment of conviction of second degree burglary and from an order denying his motion for a new trial. He challenges the admission of certain evidence, the instructions to the jury, and the sufficiency of the evidence to support the verdict.

The judgment appealed from was entered on defendant's second trial. The facts concerning the commission of the offense are fully set forth in the opinion on the first appeal. 149 Cal.App.2d 395, 308 P.2d 852. The evidence introduced on both trials showed that a number of rifles and shotguns had been stolen from an Oakland hardware store. Over defendant's objection on the second trial, the court permitted the prosecution to read into evidence the testimony given on the first trial by one Holmes to the effect that the defendant, together with Holmes and two other men, had planned and perpetrated the burglary. Defendant first contends that the admission of Holmes' prior testimony constituted error.

Penal Code, section 686, subdivision 3, provides that a defendant is entitled 'to produce witnesses on his behalf and to be confronted with the witnesses against him, in the presence of the court, except that * * * the testimony on behalf of the people or the defendant of a witness deceased, insane, out of jurisdiction, or who can not, with due diligence, be found within the state, given on a former trial of the action in the presence of the defendant who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, may be admitted.' (Emphasis added.)

Before the first trial Holmes had pleaded guilty to the burglary. A deputy probation officer testified that Holmes had been assigned to him for supervision and that his probation had been revoked. In order to facilitate his rehabilitation, the officer had on July 11 obtained a court order restoring Holmes to probation on condition that he return to his home in Philadelphia. He testified that he had asked Holmes to write him upon his arrival there, and that he had received a letter postmarked July 22. Since the trial began on July 24, it may reasonably be inferred from this evidence that Holmes was out of the state at the time of the trial.

Defendant argues that the mere showing of Holmes' absence from the state did not constitute a sufficient foundation for the introduction of his prior testimony, as the prosecution did not show that it had exercised due diligence to insure his presence at the second trial. The statute (Pen.Code, § 686, subd. 3) permits the introduction of such testimony where it is shown either that the witness is 'out of jurisdiction' or that he cannot, 'with due diligence, be found within the state.' See People v. Noone, 132 Cal.App. 89, 94-95, 22 P.2d 284. In the latter situation, due diligence to find the witness is required; the cases on which defendant relies hold nothing more. People v. Kuranoff, 100 Cal.App.2d 673, 677, 224 P.2d 402; People v. McDonald, 66 Cal.App.2d 504, 509, 152 P.2d 448. Where the evidence is sufficient to show that the witness is absent from the state, the due diligence requirement is inapplicable. See People v. Barker, 144 Cal. 705, 706-707, 78 P. 266; People v. Martin, 127 Cal.App.2d 777, 784, 274 P.2d 509. To hold, as defendant argues, that there must also be a showing of due diligence to keep the witness within the state, would be contrary to the plain terms of section 686 and would work an unreasonable hardship on the party seeking to introduce such testimony.

Defendant also argues that Holmes' testimony at the first trial should have been excluded because there was no evidence of the authenticity of the transcript. But at the trial he made only a general objection to this testimony, and his argument was there directed solely to the foundational requirement of section 686. The present objection therefore comes too late. See People v. Fowzer, 127 Cal.App.2d 742, 746-747, 274 P.2d 471; People v. Renck, 105 Cal.App.2d 277, 283, 233 P.2d 43; People v. Tolmachoff, 58 Cal.App.2d 815, 826, 138 P.2d 61.

Defendant next challenges the giving of the following instruction concerning the corroboration of an accomplice's testimony: 'In determining whether or not the testimony of an accomplice has been corroborated as required by law, you must, for the purpose only of your consideration of that question, assume to be removed from the case such testimony, if any, of the accomplice which tends to connect the defendant with the commission of the offense charged and shown by the evidence to have been committed by someone; and you then must examine all the other evidence with the view of determining if there be any evidence tending to connect the defendant with the commission of the offense. If such other evidence does do that, then the testimony of the accomplice is corroborated; if it does not, then there is no corroboration, although the accomplice may be corroborated in regard to any number of facts sworn to by him.' (Emphasis added.)

While a similar instruction was criticized on defendant's previous appeal, the court found it unnecessary to determine whether there was prejudicial error. People v. Carswell, supra, 149 Cal.App.2d 395, 403-404, 308 P.2d 852. In view of the abundant evidence other than the testimony of the accomplice connecting defendant with the commission of the offense, we are convinced that no prejudicial error was committed.

Defendant contends that the trial court should have excluded the testimony relating to the seizure of nine of the stolen guns found in his room. At both trials it appeared that police officers, acting without a search warrant, entered defendant's room after the burglary and saw the guns. On the basis of their observations, they obtained a search warrant pursuant to which the guns were later seized. Because the warrant was obtained as a direct result of the officers' previous observations in defendant's room, it was valid only if their first entry was lawful. The burden of establishing its legality was on the prosecution. People v. Roberts, 47 Cal.2d 374, 377, 303 P.2d 721; see People v. Carswell, supra, 149 Cal.App.2d 395, 397, 308 P.2d 852. We are satisfied that this burden was amply sustained.

Police officers testified that they went to the hardware store after the burglary, and that they talked to a Mrs. Ornduff, a resident of an hotel next door. Mrs. Ornduff, a reliable informant, told the officers that she had seen defendant and two other men carrying long packages wrapped in sheets out of the hotel on Sunday evening. Defendant's home address was ascertained, and on Monday evening five officers went to his home to arrest him. They were admitted by a painter, who showed them to defendant's room. They knocked and announced that they were police officers but received no reply. On request, the painter then produced a key and admitted them. Defendant was absent. On the bed lay a gun, the serial number of which corresponded with that of one reported missing from the hardware store. Eight more guns were seen in the closet when the...