People v. Smallman

Thornton, J.: The defendants were indicted by the Grand Jury of the City and County of San Francisco for* the crime of grand larceny. They were charged in the indictment with feloniously stealing, taking, and carrying away, contrary to the form, etc., 100 pieces of the current gold coin of the United States of the denomination of double eagles, or $20 pieces, and of the value of $20 each, said money being the property of William Cooper and Margery Wells Cooper. The defendants pleaded not guilty to the indictment, and on the trial the jury found them guilty as charged. They then moved an arrest of judgment, and for a new trial, which were denied. Sentence was pronounced by the Court, from which sentence, and the order denying a new trial, this appeal is prosecuted. On the trial several exceptions were reserved to the admissibility of the evidence, which we will proceed to consider. The above-named Margery Cooper was called as a witness by the [189] prosecution, and examined. On her cross-examination, counsel for the defendants offered, for the purpose of affecting her credibility, an affidavit made and signed by her on the 16th day of January, 1879. It also came out on the cross-examination that the affidavit was written by one Carey, who presented it, and read it to the witness, when she signed it, and swore to it. The evidence tended to show that at this time Carey was employed by the defendant, Amelia Smallman, to draw this affidavit, and have it signed and sworn to by the witness; afterward there was direct testimony to this effect. On the redirect examination, the witness was. asked as to the circumstances under which the affidavit was made, and what conversation she had with Carey about it. The defendants objected to any conversation of witness with Carey in relation to this affidavit, which was had in the absence of defendant Amelia. The Court overruled the objection, and admitted the evidence, to which the defendants excepted. We see no error in this ruling. It was proper to ask the witness as to every matter which occurred in relation to, and in connection with, the affidavit. The conversation had about it while it was being prepared and signed, and the oath made to it, were parts of the transaction, which were as properly admissible as the affidavit itself. The defendants, on the cross-examination of the above-named William Cooper, drew out the fact that the witness had consulted, in relation to the transaction out of which the indictment grew, F. E. Southerland, and in part developed what had occurred between them as to the matter. The plaintiff was permitted to call out, on cross-examination, against the objection and exceptions of defendants, all that had taken place between the witness and Southerland in the consultation or consultations inquired about. We see no error in this ruling of the Court. Sarah Selleck was called as a witness by the defense. It appears that she was called to impeach Margery Cooper by proving a statement contradictory to what Mrs. Cooper had deposed on the trial. She was asked by defendants’ counsel the following question; “ Did Mrs. Cooper ever request you to go and see Mrs. Smallman in reference to any points in stocks ? ” The prosecution objected to this question; the objection was sus [190] tainecl, and defendants excepted. Nevertheless, the witness appears to have answered the question. She said: “ I never had any conversation with Mrs. Cooper with reference to her procuring Mrs. Smallman to invest money for her in stocks.” This question was then put by counsel for defendants : “ Did Mrs. Cooper ever ask you to intercede for her and get Mrs. Smallman to invest any money in stocks for her ? to intercede with her?” To this the prosecution objected. The Court sustained the objection, and defendants excepted. This ruling is now assigned as error on behalf of defendants. If this question was intended to impeach Mrs. Cooper, by showing she had made contradictory statements, the predicate had not been laid for so doing, by interrogating her in relation to them. If to show the relations existing between Mrs. Small-man and Mrs. Cooper, the character of those relations so clearly appears from the testimony which was adduced before the Court, that we cannot see that the defendants were injured by disallowing it. It does not appear that there was any conflict in the testimony as to the character of the relations existing between Mrs. Cooper and Mrs. Smallman; nor was any question made in relation to it. The testimony clearly shows that they were on intimate and friendly terms. The witness, (Mrs. Sellcck) having just deposed that she never had any conversation with Mrs. Cooper with reference to her procuring Mrs. Small-man to invest money for her in stocks, we cannot discern any error committed by the Court in refusing to allow the question. We find no error in the record or the rulings of the Court in relation to admitting or excluding testimony, nor did the Court err in refusing to advise the jury to acquit defendants' at the close of the testimony for the People. The refusal of the Court to grant a new trial was attacked for the errors above referred to, and on the further grounds that the verdict was contrary to law, and that it was contrary to the evidence—that the evidence clearly showed that there was no larceny. The Court, at the instance of defendants, gave to the jury the following instruction: “If the jury believe, from the evidence, that the $2,000 was delivered by Mrs. Cooper to Mr. Smallman, with the understand [191] ing and agreement that, the same was to be invested by him in stocks, and he did so invest it, you should find the defendants not guilty.” The defendants asked the Court to give the following, which was refused: “If the jury believe from the evidence that Mrs. Cooper gave W. H. M. Smallman the $2,000 of her own free will, with the understanding and agreement that he was to invest the same or - have the same invested in stocks, either in her own name or otherwise, then you should find the defendants not guilty.” This request was too narrow. If given, it would have withdrawn from the consideration of the jury the testimony connecting the other defendant with the matter under investigation. An instruction which goes to the acquittal of defendants must be broad enough to cover the essential facts of the- case. There was no error in the refusal of this request, nor do we discover any error in the refusal of the request numbered two, (2) asked by the defendants. We have fully examined and considered the charge which was given to the jury by the Court below, and find nothing in it which should induce a reversal of the judgment. We cannot say that the verdict was against law or contrary to the evidence. There was conflict in the evidence, but there was not a lack of evidence. The former Supreme Court to which this appeal was taken, as is true of this Court, was invested with appellate jurisdiction in such criminal cases as could come before it, on questions of law alone. (Constitution as amended in 1882, art. vi, § 4; Constitution of 1879, art. vi, § 4.) When there was no evidence to establish the charge set forth in the indictment, it would present a question of law, on which the former Court and this Court would be competent to act. This would not be the case where there was evidence tending to prove the guilt of the accused. For the foregoing reasons the judgment and order must be affirmed, and it is so ordered. Myrick, J., and Sharpsteik, J., concurred.