People v. Notz

73 Cal.App.2d 439 (1946) THE PEOPLE, Respondent,

v.

JOHN NOTZ et al., Appellants.

Crim. No. 3928. California Court of Appeals. Second Dist., Div. One.

Mar. 7, 1946. Gladys Towles Root for Appellants.

Robert W. Kenny, Attorney General, Frank Richards, Deputy Attorney General, Fred N. Howser, District Attorney, and Jere J. Sullivan, Deputy District Attorney, for Respondent.

DORAN, J.

This is an appeal from a judgment of conviction and an order denying a motion for a new trial. [440]

Defendants were accused by information of two offenses of grand theft after a prior conviction of a felony. Both defendants admitted the prior conviction. The two grand theft offenses of which defendants were adjudged guilty by a jury, consisted of the robbery of the operator of a liquor store and the theft of an automobile. A revolver was used by one of the defendants in the robbery referred to. There were several witnesses to the robbery, who later identified the defendants. The defense was an alibi.

[1] It is contended by appellants that the trial court erred by instructing the jury that, "it is wholly immaterial on what day or night the offense charged in the information was committed, provided you believe from the evidence it was committed, and that the same was committed within three years prior to the filing of the information in this case."

In support of this contention, appellant relies on People v. Waits, 18 Cal.App.2d 20 [62 P.2d 1054]. The Waits case relies in turn on People v. Morris, 3 Cal.App. 1 [84 P. 463]. The latter case decided (at pp. 6 and 7) that, "While the misconduct of special counsel was such as to require the case to be remanded for a new trial, there is one other matter calling for attention"; then follows a reference to and consideration of the instruction on the subject of alibi. It should be noted in this regard that there is no resemblance between the situation presented in the Morris case and the case at bar. Moreover, the extreme presented by the Morris case on the subject of alibi instructions is not supported by the weight of authority. And, in any event, inasmuch as the decision was based on other grounds as above noted, reference to the subject of alibi instructions appears to be obiter dictum.