People v. Rogers

HART, J.

The appellants jointly with one William Fleming were informed against by the district attorney of Sacramento County for the crime of robbery, alleged to have been committed on the twelfth day of April, 1922, in said county, upon the person of one Floyd McBride, it being alleged that said defendants by means of force and fear took from the possession and in the immediate presence of said McBride one open-face watch and one watch-chain of the value of thirty dollars and of the personal property of said McBride. The appellants were jointly tried for and convicted of the crime so charged and took an appeal from the judgment of conviction.

The cause was regularly placed upon the calendar of the December, 1922, term of this court for hearing and argument, and the attorneys of record for the appellants duly notified of that fact. On the day upon which the case was called for hearing no one appeared for the appellants and, consequently, the cause was not orally argued before this court. No briefs had been filed in the case and the cause, upon being called for hearing, was submitted by the

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attorney-general upon the record. No briefs have since been filed in behalf of the appellants.

We have examined the record with care and have discovered no reason for disturbing the verdict. It appears from the record, however, that immediately after judgment of sentence was pronounced one of the counsel for the appellants gave oral notice of an appeal from the judgment and at the same time stated that there was but on'e question involved in the ease which he desired reviewed on appeal, to wit, the constitutionality of that portion of section 1098 of the Penal Code, as amended by the legislature of 1921 (Stats. 1921, p. 90), providing that “when two or more defendants are jointly charged with any public offense, whether a felony or a misdemeanor, they must be tried jointly, unless the court order special trials.” In this case an application was made for separate trials of the three defendants, but the court, after stating that there was no showing upon which the claim for separate trials could justly be made and no such showing having been offered by counsel, denied the request for separate trials and ordered the appellants to be tried jointly.

Undoubtedly if it were necessary to hold that the legislature in clothing trial courts with the .power or discretion of determining whether persons jointly charged with the same public offense should be tried separately or jointly had transcended its constitutional authority, we would be required to hold that a fundamental right of the defendants had been denied them in the order of the court refusing them separate trials. The question is one, therefore, which should be considered, notwithstanding- that the appellants have failed to argue the case before us, either orally or by way of briefs, the record, as seen, showing that the question was raised in the court below. As stated, there are no briefs on file herein and counsel have not otherwise attempted to support the suggestion that said provision of the Penal Code is in conflict with the constitution. Our opinion is, however, that there is no provision of the constitution with which said section conflicts. To the contrary, we think that the section vests the trial .courts with a wise and proper discretion in the matter of determining whether in any case where two or more parties are jointly charged with the same offense they shall be tried jointly or. separately.