People v. Crowley

Decision Date08 December 1950
Docket NumberCr. 4470
Citation224 P.2d 748,101 Cal.App.2d 71
CourtCalifornia Court of Appeals Court of Appeals

John J. Hamilton, Los Angeles, for appellant.

Fred N. Howser, Atty. Gen., Donald D. Stoker, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

The defendant, Carl William Crowley, was accused of the crime of burglary in that he did enter a certain building with the intent to commit theft. The defendant had been convicted of five prior offenses (two violations of sec. 146, Vehicle Code; one violation of the Narcotic & Drug Act; one conviction for forgery; one violation of sec. 11160, Health & Safety Code). Defendant pleaded not guilty.

Elmo Vincent, a witness for the People, testified that he had an apartment across the hall from the office in question which was used by his brother, Dr. A. H. Vincent, and that he and another brother were watching (listening to) television on Sunday night, December 4th, when they heard what he described as a 'tremendous noise' going on in the office across the hall. Mr. Vincent told his wife to call the police while he and the brother went across the hall to investigate. He testified that they found the door into the office reception room ajar about one inch, that he switched on the lights and while they were standing there a man came walking out of the treatment room in the rear into the room in which they were standing. The brother, who was not called as a witness, asked the man (who remains unidentified), according to the witness, what he was doing there and the stranger told him he was looking for the doctor. Vincent testified that the stranger looked quite ill, that he was staggering, and that he showed the brother a letter which said that although it might appear that the bearer was intoxicated that he was not--that he was a very sick man. Vincent did not see the letter closely enough to read it, and did not know whether it was typewritten, printed or written in longhand. The stranger did not tell Vincent or his brother about any one escorting him to the office, and after the brother had seen the letter, the two men allowed the man to leave. The brothers then turned out the light in the waiting room, closed the door and, after making certain it was locked, returned to the apartment across the hall.

The record shows without conflict that two groups of police officers arrived at the scene--one group within two or three minutes after the brothers had questioned the stranger and that these officers set out immediately to search the neighborhood without going into the office. The second group arrived approximately 30 minutes later and, with the two brothers, went into the office. During the search, the defendant was discovered crouching with his shoes in one hand in one of the smaller treatment rooms behind the treatment table. In this room was a cabinet in which various narcotics were kept, but there was no evidence that any of the drugs had been taken although the doors which normally were kept closed but unlocked, were open as were several of the drawers. One of the police officers testified that he had searched the defendant but had found no drugs or burglar's tools on his person, and that he had found only a wallet, a key, and a small pencil type flashlight.

The defendant, testifying in his own behalf, stated that earlier that evening he had been filling his tray at a Simons cafeteria in downtown Los Angeles, and that he had helped an old shaky man who was having trouble. He said that old man showed him a letter, written in longhand, which explained that he was ill and not intoxicated. During the conversation which ensued, apparently the defendant offered to go with him to a doctor's office on Vermont Avenue. When they arrived, according to the defendant's testimony, the door was unlocked and they went into the waiting room; they though the doctor was in the back because there was a light back there. This was corroborated by Vincent's testimony that the street lights, shining through a back window, partially illuminated the treatment room. The defendant stated that after they had waited about fifteen minutes he suggested to the old man that he make himself known and the stranger then knocked on the partition. While the two were in the treatment room where they discovered the light was from the street, they heard someone come into the waiting room. Defendant testified that the old man said for him to wait there, that it was probably the doctor and that the old man then walked into the waiting room; that he heard the conversation with the brothers and heard the old man leave; that he then heard the police running up the stairs, and because he was afraid of losing his parole, took off his loose shoes, tiptoed back into the treatment room and hid behind the table where he was later found by the second group of officers. Defendant testified without conflict that although he had been an addict he had not used narcotics for four years and the record is devoid of evidence to show that he was at the time of arrest under the influence of any drug. He stated that he had only gone to the office to help the old man and that he had not stolen anything, nor had he intended to do so.

The only point raised on the appeal is that the court committed prejudicial error in making certain remarks to the jury after it had reported inability to agree. The record shows that the jury retired at 12 noon, returned to the courtroom at 4:22 and stated that it was unable to reach a verdict, and that the trial judge without information as to the manner in which the jurors were divided made the following statement: 'Very well. Ladies and gentlemen of the jury, you have indicated to me that you are unable to agree up to this point. You are therefore instructed that evidence has been brought here before you jurors and I feel that the evidence produced in this case has been plain and clear. It is true, of course, that there has been some conflict in the evidence, but I do not see anything in the evidence of such a nature as to make it impossible for you as jurors to agree one way or the other. The Court is not attempting to tell you or even suggest to you how you should decide the matter but, as I say, the evidence is clear, although conflicting. It is subject to be analyzed by the jurors. As long as there is no conflict or misunderstanding as to what the evidence is, it appears to the Court that it should be analyzed to the extent of being able to reach a decision in the case. It is of importance to both plaintiff and the defendant, or to the People and the defendant, that a decision be reached; when a decision is not reached, and a cause terminates, it means considerable expense to the County and to the defendant. Of course, this is a secondary matter. The matter of determining the charge as presented to you for determination by the evidence and the instructions are of first and paramount importance, but at the same time when it comes to the matter of trying cases over, more than once, it means that there is an additional burden both on the People of the State and the defendant. You are instructed that you have no right to decide this case on surmise or suspicion, as I have previously indicated in my instructions. Your oath as jurors is to the effect that you determine this case solely and only upon the evidence legally introduced and the law as given to you by me in my instructions. The Court feels that you should be honest endeavor and by exerting every reasonable means within your power of reasoning, reach a verdict in this case, if it is at all possible. I am going to have you retire again and see if you cannot come to some kind of a decision. You will therefore retire to the jury room for further deliberation. If you are unable to reach a verdict by 5:00 p. m. on this date, Mr. Bailiff, you will--Mr. Foreman, if you are unable to reach a verdict by 5:00 o'clock, you will so inform the bailiff. In such event, Mr. Sheriff, you are ordered to lock the jury up for the night and return the jury to this court room at 9:30 tomorrow morning, February the 1st. * * * Very well, Mr. Clerk, in the event the jury should not reach a verdict by 5:00 o'clock and it is necessary for them to be locked up for the night, we will at this time swear in a woman bailiff and in the event it is necessary for the jury to be locked up, you will swear in the other bailiff to take charge of the jury. (The clerk swore in the woman bailiff.) The Court: The jury way now retire.'

After these proceedings, the jury returned to the jury room at 4:29 p. m. and returned into court at 5:00 p. m. with a verdict finding the defendant guilty of second degree burglary.

It is well settled that a conviction will not be allowed to stand if the court has made remarks to the jurors which might reasonably be interpreted as indicating the court's belief of the guilt of the accused, and if it also appears upon the entire record that the infringement upon the rights of the defendant resulted in a miscarriage of justice. Under our system of law no reviewing court could hold otherwise. These questions must be answered on the factual basis of the individual case.

The courts have not hesitated to reverse convictions where trial judges have urged that an agreement be reached after learning that a small minority of the jurors were holding out for acquittal. People v. Walker, 94 Cal.App.2d 818, 209 P.2d 834; People v. Blackwell, 81 Cal.App. 417, 253 P. 964; People v. Piscitella, 90 Cal.App. 528, 266 P. 349; People v....

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