People v. Dunlap

HAAS, J.,

pro tem.

Defendant was charged by information with the crime of robbery, a felony. Entering, a plea of not guilty, he was duly tried and convicted on the count of robbery of the first degree and sentenced to state prison. He now appeals from an order denying his motion for a new trial, and from the judgment, “the verdict and sentence”.

In the course of the trial, the trial court heaird evidence by the deputy sheriff J. W. Hurst, in words and figures as follows:

“I said, ‘Which one held the gun in the robbery diown in Los Angeles, you or the other fellow? He (referring! to the defendant) said, ‘Jones held it.’ ” Appellant asserts that whether or not the words “Jones held it” constituted a confession that was of a voluntary or involuntary character should have been decided by the court at a hearing h^ld out of the presence of the jury until the court rendered its decision, and that “no admonition was given at any time that the same (alleged confession) could or would be used against him”. And that “none of the alleged confessions in any way tended to connect defendant with the crime, anil were not admissible at all”.

The transcript of the evidence discloses no objection to have been made by counsel for defendant at the time .this donversation was given in evidence, nor was any motion made to strike it. The transcript further discloses that the officer admitted several times that the appellant had consistently denied guilt. In order that the testimony may be Considered as relating a confession there must be an admission of guilt. “A confession is the voluntary declaration made by

[335]

a person who has committed a crime or misdemeanor to another acknowledging his agency or participation in the same.” (16 Cor. Jur., p. 714, sec. 1464.) The evidence nowhere discloses an acknowledgment of guilt; on the contrary, refutes such a premise. The words “Jones held it” not constituting a confession, the court cannot be held to have erred, even had an objection been raised to admitting and hearing such evidence in the presence of the jury. The court had read the testimony of the officer given in the preliminary hearing, and the transcript discloses nothing to show that the statements to the officers were involuntary. An admonition by the officer that statements made by the defendant might be held against him was uncalled for. Whether the statement testified to have been made by defendant—namely, “Jones held it,”—connects defendant with the crime charged, is a question for the jury, taken into consideration in connection with all other evidence adduced.