People v. Fouts

WORKS, J.

This is an appeal from a judgment of conviction of burglary and from an order denying defendant’s motion for a new trial.

The first point made by appellant is that the trial court erred in receiving evidence of a confession of appellant, and this upon the ground that, as put in the brief, “the evidence clearly shows that such confession was involuntary.” We have examined the testimony bearing upon this question and there can be no doubt that there was a substantial conflict upon it. Under such circumstances it was the duty of the trial judge, in the first instance, to determine whether the evidence showed beyond a reasonable doubt that the confession was free and voluntary

(People

v.

Zarate,

54 Cal. App. 372 [201 Pac. 955]). The judge

[244]

having resolved the question we can no more disturb his action than we could the action of judge or jury on any disputed question of fact.

The burglary in question was committed by appellant in company with one Avogadro. A part of the defense of appellant was that, although he was at or near the place of the burglary, he did not participate in the commission of the crime, but attempted to dissuade Avogadro from committing it. Appellant himself testified that he endeavored to persuade Avogadro not to enter the store which was burglarized. Immediately preceding the burglary both appellant and Avogadro were inmates or frequenters of a .place called Salvation Army Hall, an institution then in charge of an officer of the Salvation Army. This officer testified that Avogadro, an alleged narcotic addict, was “under her care” at the hall. The officer was then asked various questions by appellant's counsel for the purpose of eliciting from her a statement of certain “instructions” which it is claimed she gave to appellant when he and Avogadro left the hall together some hours before the burglary was committed. Objection was made to all these questions and the trial court ruled that they were improper. These rulings are complained of as error. Appellant says in Ms brief that he expected to show by the Salvation Army officer that she had told him “to watch Avogadro and stay with him and keep him out of trouble.” We shall assume that this was the purpose of the questions, but, even so, we must at once remark that we cannot perceive that they were proper. What the Salvation Army officer said to appellant can cast no light upon the truth or untruth of his story as to what he did at the scene of the burglary. That she did tell appellant to watch over Avogadro would have been no evidence whatever that he limited his operations at the scene of the burglary to acting as Ms brother’s keeper, or that he ever watched over Avogadro at all. Such testimony of the Salvation Army officer would have been no evidence of the intent of appellant. This is all too palpable to require argument.